Ms Andrea Tieman v Latrobe Regional Hospital trading as LRH

[2013] FWC 3246

[2013] FWC 3246

FAIR WORK COMMISSION

DECISION

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

Ms Andrea Tieman
v
Latrobe Regional Hospital trading as LRH
(U2013/7188)

DEPUTY PRESIDENT SMITH MELBOURNE, 31 MAY 2013

Application for relief from unfair dismissal; jurisdiction—extension of time?

[1] Ms Andrea Tieman alleges that she was unfairly dismissed in her employment with Latrobe Regional Hospital (LRH). Ms Tieman lodged her application on 5 March 2013.

[2] The matter was listed in Moe to provide easy access to Ms Tieman who was self represented. Mr N. Harrington of Counsel sought leave to appear for LRH. This was not opposed by Ms Tieman and I formed the view that permission to appear should be granted, firstly to enable the matter to be dealt with more efficiently, 1 taking into account the complexity of the matter and secondly because of the personal attacks on Counsel who produced the submission of LRH (this was later withdrawn).

[3] Whilst initially declining to confirm the date of termination, Ms Tieman conceded that her casual employment came to an end on 21 December 2012. This conclusion can be drawn from the evidence of Mr L. J. Ryan. 2 Out of an abundance of caution I find that Ms Tieman’s casual employment came to an end on 21 December 2012. In these circumstances Ms Tieman needs an extension of time pursuant to s.394 of the Act.

[4] LRH also raised an objection to jurisdiction in relation to the minimum period of employment. This was listed for hearing at the same time to reduce transaction costs and limit the number of proceedings that Ms Tieman needed to attend. However, given that material was filed late by Ms Tieman together with the information contained in that material, LRH sought and was granted an adjournment of that part of the matter. In the result, it was only the extension of time matter which proceeded.

[5] Section 394 provides:

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC 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] Ms Tieman argued that she was in conciliation dealing with her Workcover claim when she was terminated in her employment and that her termination contained procedural flaws. It was also her submission that her termination was based upon falsehoods and that she was bullied. She submitted that nobody told her about the time limit and that she should apply to the then Fair Work Australia (FWA). In addition, she was of the belief that she could not approach a Court (believing that FWA was a court) until she had exhausted conciliation by the Accident Compensation and Conciliation Service (ACCS). I add at this stage that whilst Ms Tieman put in a submission in the form of an unsigned affidavit, she declined to present the signed version to the Commission.

[7] The facts in relation to the ACCS matter are that Ms Tieman lodged her application on 7 December 2012; it was rejected in 8 January 2013 and conciliation took place on 18 February 2013. On 22 March 2013 the matter was concluded when an agreement was reached.

[8] LRH submitted that none of the matters raised by Ms Tieman constituted exceptional circumstances. It submitted that her ignorance of the requirements of the Act 3 and her belief about the processes before the ACCS, fell into the same category. Her Workcover application4 did not, either separately or together with the ignorance of the law, constitute exceptional circumstances.

[9] I now turn to the statutory tests.

The reason for the delay

[10] The issues raised by Ms Tieman that she was not aware of her rights and that she had lodged a Workcover claim are not unusual or special or uncommon. 5 It follows, that I am not satisfied that there were exceptional circumstances under the Act which gave rise to the delay.

Whether the person first became aware of the dismissal after it had taken effect

[11] I am satisfied that Ms Tieman was well aware of her termination of employment no later than 10 January 2013 when she replied to LRH disputing the basis of her dismissal. 6

Any action taken by the person to dispute the dismissal

[12] Whilst Ms Tieman sought to suggest that her Workcover claim was action in relation to her dismissal, I am not satisfied that it was. Ms Tieman raised allegations of bullying which were resolved through conciliation. It was that matter which was actionable through the Court if not resolved and not the claim in relation to unfair termination of employment. There was no evidence of any action being taken until the application alleging unfair termination of employment was lodged.

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

[13] LRH did not argue that prejudice would result should an extension of time be granted.

The merits of the application

[14] It is not possible to make a finding that the matter is wholly without merit as it would require the resolution of evidence.

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

[15] In relation to this item, there are many decisions of the Commission where ignorance of the provisions of the Act was not found to be a reason for extending time. To do so now, even against the strong view of Ms Tieman that she had been wrongly dismissed, would create unfairness between her and other persons in a similar position. It would also render meaningless the timeframe in the legislation as ignorance of the law would become a path well trodden.

[16] Having examined these matters in accordance with the requirements of the Act and decisions of the Commission, I am bound to conclude that time should not be extended. The application for an extension of time is dismissed. It follows that the second jurisdictional argument need not be addressed.

DEPUTY PRESIDENT

Appearances:

A. Tieman the Applicant with G. Donohue.

N. Harrington of Counsel on behalf of the Latrobe Regional Hospital.

Hearing details:

2013.

Moe:

May, 21.

 1   There were two jurisdiction issues but added to that was an email forwarded to chambers (which was not viewed) containing a YouTube reference dealing with what appeared to be allegations of a break in Sovereignty in Australia. This was raised but not pressed by Ms Tieman. I only need to refer to Joose and Anor Applicants and Australian Securities and Investment Commission (1998) 159 ALR 260

 2   Exhibit H1, Attachment LR5 and LR6

 3   Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975; Chris Berry v Zintel Communicatins Pty Ltd [2011] FWA 3198

 4   Allanah Baker v Salva Resources Pty Ltd[2011] FWA 1289

 5   Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at paragraph 25

 6   Exhibit H1, Attachment LR6

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