Mrs Sharon McKenzie v Amamoor Nominees Pty Ltd T/A Callows Corner Newsagency

[2011] FWA 2315

[2011] FWA 2315

FAIR WORK AUSTRALIA

DECISION

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

Mrs Sharon McKenzie
v
Amamoor Nominees Pty Ltd T/A Callows Corner Newsagency
(U2011/4997)

COMMISSIONER CLOGHAN PERTH, 14 APRIL 2011

Unfair dismissal remedy.

[1] On 8 February 2011, Mrs Sharon McKenzie (“the Applicant”) made application to Fair Work Australia (FWA) alleging that she was unfairly dismissed from her employment with Amamoor Nominees Pty Ltd trading as Callows Corner Newsagency (“the Employer”).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 “(the FW Act”).

[3] The Applicant states that she was dismissed on 13 January 2011.

[4] On 11 March 2011, the Employer objected to the application being arbitrated as it was received by FWA out of time. The relevant grounds of the objection were as follows:

• the date of dismissal is not in contention;

• the application was lodged 11 days out of time (exclusive of the day on which termination took effect);

• the Applicant has not provided evidence to support the claim that stress was a factor affecting the time of the lodgement of the application; and

• the applicant has made no contact with the Employer to dispute the dismissal.

[5] The matter was unable to be resolved at conciliation on 15 March 2011 and was referred to me for arbitration.

[6] On 15 March 29011, I wrote to the Applicant. The relevant parts of the correspondence are as follows:

“Section 394 of the Fair Work Act 2009 (the Act) enables a person to apply to FWA for a remedy for unfair dismissal, however, the application must be made within 14 days after the dismissal took effect, or such other period as I determine. I can allow a further period for the application to be made, if I am satisfied there are exceptional circumstances, taking into account s.394(3) of the Act which provides for :

(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.

Prior to making a decision on whether to allow an extension of time in which to accept your application for an unfair dismissal remedy, I invite you to provide further information on the issues outlined above in s.394(3) of the Act and any other matters you consider relevant.”

[7] On 4 April 2011, I received a response from the Applicant.

[8] The Applicant states that, “the reason I took so long too (sic) file the unfair dismissal claim was because I was stressed out [at this point in her response, the Applicant refers to her domestic circumstances]. I just couldn’t think straight in my head...As had not received separation certificate was not sure I had been terminated. So time passed...”.

[9] The Employer has advised in its submission that on 4 January 2011, the allegations that led to the Applicant being dismissed were discussed with her. At the conclusion of the meeting, Mrs McKenzie was offered time and opportunity to respond to the allegations.

[10] On 13 January 2011, the Employer again met with the Applicant and her two support persons. At the conclusion of the meeting, the Employer dismissed the Applicant and she was asked to leave the workplace.

[11] On the week commencing 17 January 2011, the Applicant was paid for hours previously worked. The Employer advises that, neither at the meeting on 13 January 2011, nor thereafter, did Mrs McKenzie seek an Employment Separation Certificate (ESC).

[12] Finally, the Employer highlights that while the Applicant claims she was “stressed out”, the claim is not supported by any medical evidence.

[13] I now turn to the issue of whether there are exceptional circumstances to extend the time for lodgement of the application to 8 February 2011.

[14] Firstly, the legislative position is that the time limit of 14 days should be complied with unless there are exceptional circumstances. In Mrs McKenzie’s circumstance, she claims she was “stressed out” due to domestic circumstances in which she found herself. While the Tribunal may sympathise with the Applicant’s domestic circumstances, they are generally neither exceptional nor extraordinary.

[15] Further, the Applicant was put on notice on 11 March 2011 that she had not presented any medical evidence to support her self diagnosed claim of being “stressed out”. Despite being put on notice in March, Mrs McKenzie failed, in her response to the Tribunal, to provide any medical evidence to say that she was “stressed out”.

[16] Secondly, it is uncontested that Mrs McKenzie was aware that she was dismissed on 13 January 2011.

[17] Thirdly, Mrs McKenzie has not provided any material to the Tribunal to demonstrate that she disputed her dismissal. Further, the Employer has submitted that the Applicant was provided with payment of outstanding hours worked shortly after the dismissal and no request has been made for an ESC.

[18] The Employer has not submitted that they would be prejudiced by an extension of time specifically, but objects for other reasons.

[19] While I have read the material provided to the Tribunal, I have not reached a determinative view on the merits of the application.

[20] As I have previously stated in similar applications, I am reluctant to grant an extension of time where the Applicant provides reasons for a delay in lodgement which are essentially self determined. If I accept as exceptional that an Applicant was “stressed out”, it would render the statutory timeline irrelevant and self determine when applicants could institute proceedings.

[21] In conclusion, having considered all the information provided by the Applicant and the Employer and the provisions set out in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances to extend the time for the application to be lodged. Accordingly, the application will be dismissed due to it being filed out of time; an Order will be issued to this effect.

COMMISSIONER

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