Ms Amanda Weir v Firstace Pty Ltd as trustee for the Urquhart Family Trust T/A the Mortgage Gallery, Joondalup

[2010] FWA 4403

[2010] FWA 4403

FAIR WORK AUSTRALIA

DECISION

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

Ms Amanda Weir
v
Firstace Pty Ltd as trustee for the Urquhart Family Trust T/A The Mortgage Gallery, Joondalup
(U2009/14506)

DEPUTY PRESIDENT MCCARTHY PERTH, 11 JUNE 2010

Application for unfair dismissal remedy – extension of time.

[1] Ms Amada Weir (the Applicant) lodged an application for an unfair dismissal remedy (the Application) asserting that she had been unfairly dismissed from her employment with Firstace Pty Ltd as trustee for the Urquhart Family Trust T/A The Mortgage Gallery, Joondalup (the Respondent).

[2] The Application was lodged on 10 December 2009. The Fair Work Act 2009 (the FW Act) requires that an application must be made within 14 days after the dismissal took effect or within such further period as Fair Work Australia (FWA) allows. The termination took effect on 25 August 2009 and the Applicant was clearly aware at that time of the termination.

[3] I summarize the main aspects of the Applicant’s explanation for the delay as follows:

1. The Applicant asserts that she was not aware of the reasons for her termination of employment;

2. She also asserts that she was told at the time of her termination that she would receive a letter from the Respondent’s solicitors that would address various issues (presumably being issues relating to the reasons for her termination of employment);

3. Having not received anything by 7 September the Applicant sought legal advice;

4. There has been various communications to and from the Applicant’s solicitor and the Respondent’s solicitor regarding issues relating to the Applicant’s employment;

5. Other proceedings have occurred that appear to have brought some of the reasons for the termination to light and those reasons appear to be contested by the Applicant; and

6. The Applicant also submitted that had the Respondent disclosed the reasons and assertions made against the Applicant then she would have lodged her application earlier.

[4] The Applicant did take some action to dispute her termination of employment at a relatively early stage through seeking legal advice on 7 September. However either because of the advice received or for some other reason an application was not lodged until some months after that advice was sought. The Applicant or her legal advisers seem to have made a conscious decision not to lodge an application until they had further information relating to the grounds of the termination.

[5] I do not consider that to be a reasonable explanation for the delay even if it was commendable to be seized of the grounds before deciding to lodge an application. If that were to be an acceptable approach for applicants then the purpose of the time limits of the Act would be of very limited purpose.

[6] I consider that the employer would be unduly prejudiced by the delay other than the normal issues associated with any application of this nature.

[7] The merits of the application are contested and I form no view about them other than to observe that if the merits of the application were strong then it should have been more apparent to the Applicant that it was thereby reducing the acceptability of the explanation given for the delay.

[8] I also consider that it would not be fair to other persons in a like position if the application were allowed.

[9] I am not satisfied that there are exceptional circumstances here but even if there were I refuse to allow a further period for the Application to be made.

DEPUTY PRESIDENT

Appearances:

Ms H McGeorge for the Applicant

Mr A Foster for the Respondent

Hearing details:

2010.

Perth:

May, 27.

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