Mrs Sherrie Christensen v ANZ T/A Consumer Finance (Inbound Cards Collections)

[2011] FWA 8837

[2011] FWA 8837

FAIR WORK AUSTRALIA

DECISION

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

Mrs Sherrie Christensen
v
ANZ T/A Consumer Finance (Inbound Cards Collections)
(U2011/12078)

COMMISSIONER ROE MELBOURNE, 15 DECEMBER 2011

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Sherrie Christensen (the Applicant) in respect of dismissal by Australia and New Zealand Banking Group Limited (ANZ or the Respondent). The Applicant described the Respondent on her Applicant form as ANZ T/A Customer Finance (Inbound Cards Collections). I am satisfied that the Respondent is in fact Australia and New Zealand Banking Group Limited.

[2] At the hearing of this matter on 14 December 2011 I had the benefit of submissions from the Applicant and the Respondent which I considered and the Applicant gave sworn evidence about the reasons and circumstances for the delay in filing the Application.

[3] At the conclusion of the hearing of this matter I advised the parties that I was refusing to allow an extension of time and outlined my reasons on transcript. The following is a summary of the reasons which I issued on transcript on 14 December 2011.

[4] The Applicant appeared for herself and Mr David Natenzon appeared for ANZ.

[5] The parties accepted and I am satisfied that ANZ is not a small business and that the Applicant had a series of long periods of employment with the ANZ. The Applicant was continuously employed in her current role for the last 12 years.

[6] The Applicant was subject to a performance management process and was advised during that process that termination of her employment was a possibility. The Applicant says that in fact she was told that termination was the inevitable outcome but that is disputed by ANZ. It is not in contention that the Applicant resigned on 12 August 2011 effective immediately. She was paid her entitlements including payment in lieu of notice. The Applicant says that she was told that she could resign rather than be dismissed provided she did it before the scheduled meeting and that the reasons she would be allowed to resign rather than be dismissed included her long period of employment and her age. The Applicant argues that in the circumstances it was a constructive dismissal.

[7] The Applicant travelled to Sydney between 18 and 24 August for her mother’s birthday. She took no action to contest the termination of her employment prior to 26 August 2011.

[8] On or after 26 August 2011 she rang Slater and Gordon and was referred to Jobwatch. The Applicant spoke to Jobwatch on the same day as she spoke to Slater and Gordon. The Applicant says that Jobwatch told her that any application for unfair dismissal had to be made within 14 days and that she would be out of time but could apply for an extension of time. The Applicant says that she was advised that because “age came into it” she may have 60 days to make an application. The Applicant says that she then contacted Fair Work Australia who advised her that she was out of time for an unfair dismissal application and advised her about the 14 day time limit and her right to apply for an extension. FWA sent her the application form in the mail. The Applicant says she spoke to FWA on subsequent occasions. The Applicant says that she filled out the form in the library and signed it on 8 September 2011. The Applicant says that she posted it by registered mail a few days later.

[9] The FWA file shows that the Application was received on 26 September 2011.

[10] The Applicant was not ill or incapacitated during this period.

[11] Section 394(2) of the Fair Work Act 2009 (the Act) provides:

“(2) [Standard time limit] 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).”

[12] Subsection 394(3) provides:

“(3) [Extended time limit] 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.”

[13] I am satisfied in respect to criteria in Section 394(3)(b)-(f) that:

• On her own submission the Applicant was aware of the alleged dismissal at the time it took place.



• The Applicant did take some action to dispute the dismissal by contacting Slater and Gordon, FWA and Job Watch but this did not occur until the 14th day after the dismissal or later.



• There is no prejudice beyond the normal to the employer if the application for extension of time is granted given the relatively short period.



• I have some doubts about the merits of the Application in that it is agreed that the Applicant resigned her employment on 12 August 2011. However, to determine whether or not there was a constructive dismissal by the employer would require a hearing of all the evidence which I have not done. I therefore make no conclusions about the merits of the case except to observe that on the material before me the merits of the case are not strong.



• There are no other persons in a similar position.

[14] The most relevant consideration in these circumstances is the criterion in Section 394(3)(a) that is the reasons for delay. I am not satisfied that the reasons for delay constitute exceptional circumstances either by themselves or in combination with the consideration of the other factors set out above.

[15] There is no suggestion of incapacity. I am not satisfied that the delay was caused by an error by a representative or due to poor advice. The trip to Sydney for her mother’s birthday does not explain the extent of the delay as the Application could have been made within time before or after the trip. It is well established that ignorance of the time limit by itself does not constitute exceptional circumstances. The alleged delays in the post occur well after the 14 day time limit. I accept that the Applicant was upset about the ending of a long period of employment with ANZ however this does not provide exceptional circumstances which explain the delay.

[16] Taking all those matters into consideration which are specified in section 394(3) of the Act, I cannot find that there are exceptional circumstances which would justify me granting the extension of time for the application. I refuse the application for an extension of time in this matter and therefore the applicant is unable to further pursue this particular application. The Section 394 Application for unfair dismissal remedy is dismissed. The matter is now concluded.

COMMISSIONER

Appearances:

The Applicant appeared for herself.

Mr David Natenzon appeared for ANZ.

Hearing details:

2011
Melbourne
December 14

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