Mrs Renae Vaituulala v ANZ Bank

[2010] FWA 6111

[2010] FWA 6111

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Renae Vaituulala
v
ANZ Bank
(U2010/10034)

COMMISSIONER WILLIAMS PERTH, 18 AUGUST 2010

s. 394 Termination of employment.

[1] Mrs R Vaituulala, the applicant has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is the Australian and New Zealand Banking Group Limited (the ANZ).

[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.

[3] The applicant was employed on 28 May 2008 and on 19 May 2010 she was notified of her dismissal and the dismissal took effect the same day. The application was lodged on 22 June 2010.

[4] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[5] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 below.

s. 394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[6] The applicant was invited to provide submissions in writing and has done so regarding the application to extend time for making the substantive application.

Are there are exceptional circumstances?

The reason for the delay

[7] The applicant in her application stated as follows:

“I believe that I have a genuine case, but did not submit earlier as I was gathering evidence and witnesses to proof ( sic) that I was unfairly dismissed.”

[8] In the response the applicant provided to the invitation by the tribunal to provide information in support of her application to extend the time for lodgement she explains how she felt after the termination and says that she was in no fit state to lodge within the first 14 days and that some days she still can't even get out of bed to face her responsibilities and she feels there is no point.

[9] She explains that she was never expecting to be dismissed, had received no warnings and so she was shocked when she was dismissed. As a result she felt upset and confused, didn't know what to do and was too upset to think clearly and do anything straightaway. As a result she stayed home and grieved about the loss of her job.

[10] The applicant says that during two weeks after her dismissal she felt depressed and unmotivated to do anything and had changing moods. Consequently she did not attend to her home duties and chose not to attend usual external gatherings with a community group she and her husband are involved in. She says she felt humiliated.

[11] The applicant says it was only from speaking to friends and colleagues and gathering some strength that she finally considered doing something about her dismissal. Hence the late submission of her claim.

[12] Considering the applicant's explanations of why her application was lodged out of time I observe that the situation the applicant found herself in was not unusual. It is not uncommon for employees to be dismissed by their employer immediately after investigations or discussions have taken place regarding relevant events and so there may be no warning at all prior to the dismissal occurring. It is also not unusual that an employee will be distressed and upset having lost their job. The reasons for the delay in lodging her application are ones in my view that it is reasonable to assume the parliament took into consideration when deciding that the time limit for the lodgement of applications such as this would be 14 days. Also, the same can be said for the need to gather evidence and witnesses, however there is of course no need to finalise these matters before lodging an application.

[13] I note that the explanation of the applicant only accounts for the first two weeks after her dismissal and does not explain the further delay of nearly another three weeks before the application was lodged.

[14] The reasons for the delayed lodgement as explained by the applicant in this case weigh against extending the time for lodgement.

Any action taken by the person to dispute the dismissal

[15] The applicant has not said that she has taken any other actions to dispute her dismissal. This factor then weighs against extending the time for lodgement.

Prejudice to the employer (including prejudice caused by the delay)

[16] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed. This factor weighs in the applicant's favour in extending the time for lodgement.

The merits of the application

[17] The letter of termination provided to the applicant by the ANZ dated 19 May 2010 refers to meetings of the same day which discussed the behaviour that was judged unacceptable and was the reason for the dismissal including:

• improperly using her position to further her own personal interests by colluding with another ANZ employee in respect of a number of fee reversals within both employees accounts;



• having received a salary overpayment and then acting to prevent a recovery of the overpayment without explanation of her actions;



• placing a name against a number of sales that she was not responsible for in order to achieve sales targets and a bonus payment.

[18] The applicant says in her application that she believed the dismissal for these reasons was unfair because she was only doing what she was taught to do and to the best of her knowledge other staff were doing the same things.

[19] It seems then that the applicant does not contest the existence of the factual background that the ANZ relied upon for the decision to dismiss her but rather contests that their decision was fair.

[20] In the circumstances then it would be only from a full hearing regarding these issues that a view on the merits of this case could be reached. Consequently the merit of the application in this instance is a neutral factor in determining the application to extend time.

Fairness as between the person and other persons in a similar position.

[21] There is no suggestion that there are other persons in similar positions and so this issue is a neutral factor.

Conclusion

[22] The onus is on the applicant to persuade Fair Work Australia that a further period should be allowed for her to make this application beyond the statutory time limit of 14 days.

[23] The application was lodged 20 days after the 14 day time limit that is set down had passed. In this case there is not an acceptable explanation for the delay in the lodgement and the only factor weighing in favour of granting an extension of time is that there would be no prejudice to the employer. It is not the case here that there are exceptional circumstances that would warrant an extension of time.

[24] The application has been lodged outside the statutory time limit. This matter cannot proceed further and is dismissed.

COMMISSIONER

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