Ms Fiona Turner v Mach 1 Australia Pty Ltd T/A Positive Production

[2013] FWC 9424

[2013] FWC 9424

FAIR WORK COMMISSION

DECISION

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

Ms Fiona Turner
v
Mach 1 Australia Pty Ltd T/A Positive Production
(U2013/2523)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 DECEMBER 2013

Summary - termination of employment - jurisdictional objection - extension of time - employee on post dismissal cruise - access to internet - incapacity - date of lodgement.

[1] On 30 July 2013, Ms Fiona Turner made application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to her dismissal by Mach 1 Australia Pty Ltd (“the Respondent”). The Respondent is a not-for-profit organisation which provides employment opportunities for people with disabilities.

[2] The matter was subject to a conciliation conference on 9 September 2013. The matters in contest were not resolved and the application was referred to arbitration.

[3] The Respondent however raised an objection in respect of the application. It contended that the application was not made consistent with the requirements of s.394(2)(a) of the Act, and that the application should not be allowed to be made within any further period.

Legislative context

[4] Section 394(2) and s.394(3) of the Act provides as follows:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

Consideration of the evidence

[5] The Applicant indicated on her application that her dismissal took effect on 20 June 2013.

[6] The Applicant’s materials suggest she filed or intended to file her application for an unfair dismissal remedy on 29 July 2013. The application was made using the Fair Work Commission’s ‘e-filing’ facility. The e-filing receipt records that the application was filed on the morning of 30 July 2013.

[7] The application was therefore made some 19 days beyond the date specified at s.394(2)(a) of the Act (on the basis of the Commission’s electronic receipt of the application), or 18 days on the basis of the Applicant’s claim.

[8] The Applicant provided a statement for the purposes of addressing the objection.

[9] In that statement the Applicant contended as follows.

[10] The Applicant was employed, she said, by the Respondent as the Business Development Manager of Positive Production (a division of Mach 1 which appears to deliver the actual services).

[11] The Applicant was dismissed on Thursday 20 June 2013 for reasons of apparent “unsatisfactory work performance”, as she says.

[12] On Saturday 22 June 2013, the Applicant departed on a cruise which had been pre-booked.

[13] The Applicant did not return from the cruise until Saturday 29 June 2013.

[14] The cruise accounts for seven days. Upon the Applicant’s return from the cruise, nine calendar days had passed since her dismissal.

[15] The Applicant had access to the internet over the course of her cruise:

On the cruise, I was aware that there was an internet room on board, available during specific hours. I was not aware of the operating hours. Once during the cruise, my sister went to the on board internet and she found no available computers. As a result I did not have my usual access to the internet during the time I was on the cruise.

[16] The Applicant otherwise claimed that mobile phone calls were charged at international roaming rates, and on board telephone charges were too expensive to consider.

[17] Upon her return the Applicant made attempts to contact her medical practitioner for an appointment as she was “extremely stressed” (despite the holiday). She was not able to access the medical practitioner until 1 August 2013, which is after the date on which the application had been electronically date stamped as having been received by the Commission (see above).

[18] The Applicant also stated that she had contacted the Fair Work Ombudsman (on or about 4 July 2013) and expressed her concerns regarding her unfair dismissal and sought information on legal procedures relating to redundancy and bullying.

[19] The Applicant thereafter sought the assistance of a “women’s legal service” (as she referred to it):

After disclosing my concerns about my uncertain employment status and wanting information was legal implications of bullying in the workplace, [the service] said she could not help me and advised I seek legal representation if I require further information.

[20] The Applicant further claimed that:

At no time during any of the [...] discussions from Fair Workers Commission or the Women’s Legal Service, did they advise of a timeframe to submit an application to fair work Australia. (sic)

[21] On Thursday 25 July 2013, the Applicant spoke to a barrister and was advised to file an unfair dismissal application with the Commission immediately.

[22] Four days later it was claimed that the Applicant dispatched an application to the Commission by e-filing. As mentioned above, the application was marked upon receipt as having been made on 30 July 2013. That is, the e-filing receipt indicates the application was filed on 30 July 2013, and the file so indicates. The application was incomplete in any event and needed to be refiled (and this was done on the same day, 30 July 2013 directly from a personal email account this time). I note that the Applicant suggests that she filed her application on 29 July 2013 (as I mentioned earlier).

[23] The Applicant’s application, in order to be compliant with the requirements of s.394(2)(a) of the Act should have been made by Thursday 11 July 2013.

[24] The application, therefore, was made some 18 days beyond the 21 day time period stipulated at s.394(2)(a) of the Act (assuming the application was made on 29 July 2013 and not 30 July 2013 as the Commission’s electronic “invoicing” system records).

[25] The Applicant’s barrister submitted that I should allow the Applicant’s application within a further period (consistent with the discretion under s.394(2)(b) of the Act).

[26] It was submitted that:

• The dismissal occurred immediately prior to a period of approved annual leave and should be construed as being undertaken “in order to disadvantage the Applicant in any planned application for unfair dismissal”; and



• The timing of the decision was “callous” and reflected on the employer’s disposition towards the Applicant during the course of her employment.

[27] I was invited to follow the decision of the Commission in Lawford v Sydney Essential Oil Co. Pty Ltd ([2012] FWA 1718 and exclude the period of delay when the Applicant was on holiday.

[28] The Applicant’s barrister cited an extract from that decision:

In these circumstances I am prepared to recognise that the period of the applicant’s absence from Australia would ordinarily establish exceptional circumstances such that there was no obligation on the applicant to make claim during this period. I reject the proposition that the applicant should have made application or caused an application to be made, during the period of his absence from Australia. He had advised the employer of the challenge to his dismissal and he was entitled to extract some enjoyment from his holiday despite the employer’s somewhat callous timing of the dismissal. Further, if an application was made while the applicant was abroad obvious difficulties would have emerged with the likely commencement of proceedings whilst the applicant was in South America. 1

[29] If I did follow this approach, it was submitted that “as the Applicant arrived back from her cruise on Saturday, 29 June 2013, the time in which she was required to file her application only commenced on Monday, 1 July 2013” (given that 29 June 2013 fell on a weekend).

[30] Consequently, it was submitted, the Applicant had until 23 July 2013 to file her application for an order granting a remedy for her alleged unfair dismissal.

[31] It was further submitted that upon her return from her cruise on Saturday 29 June 2013, the Applicant “moved promptly” to progress her concerns by contacting the Fair Work Ombudsman (on what appears to be 4 July 2013) and (what appears to have been) the Women’s Legal Referral Service, Queensland Law Society (on or around 9 July 2013).

[32] In effect, it was further argued, the Applicant’s delay in lodging her application was five business days. Three of these days passed before she was given legal advice by her barrister. It was submitted that as a consequence:

It is reasonable to conclude that after the advice she was given that she should consider it carefully, which leaves a delay of only one business day, not counting the day she received this legal advice. (sic)

Consideration

[33] The Applicant’s application was made some 18 days (if it is accepted that the application was filed on 29 July 2013) after the statutory 21 day requirement set out at s.394(2)(a) of the Act.

(a) the reason for the delay

[34] I will firstly address the incidental claim that the Respondent acted “callously” in dismissing the Applicant prior to her annual leave.

[35] I have no evidence at all as to whether I could construe (directly or by inference) the Respondent’s conduct as being “callous” or intended to disadvantage the Applicant. Many circumstances may have weighed on the Respondent's judgment in this regard, and about which I am unaware.

[36] Such claims, in any event, may only become material to the Commission’s decision making upon a full hearing of the merits of the application (so far as they may go to the harshness or otherwise of the dismissal).

[37] That aside, the Applicant gives as her reasons for the delay that she had:

• embarked on a pre-booked cruise the weekend after her dismissal;



• returned or else found herself in a stressful state upon or after her return, and sought medical attention, the availability of which was delayed;



• made an approach to the Fair Work Ombudsman about “unfair dismissal and sought information on legal procedures relating to redundancy and bullying” less than a week after returning from her cruise; and thereafter



• sought advice from the Women’s Legal Referral Service, which ultimately led her to seek legal assistance directly (about 10 days after returning from her cruise).

[38] The Applicant did not act straight away to file an application with the Commission, despite the Rules of the Commission providing for multiple options (telephone, internet/on-line and surface mail applications).

[39] The Applicant had access to the internet whilst on her cruise but did not explore that opportunity to make an application. The cruise was of a relatively short duration of one week or so.

[40] Further, there is no evidence about the Applicant’s degree of incapacity following her cruise. Her degree of incapacity did not compromise her ability to access the Fair Work Ombudsman on various particular grounds, or to pursue multiple avenues for obtaining other legal advice about her claims. But despite being so motivated and being so capable, the Applicant did not lodge an application.

[41] The Applicant did not make an application “immediately” as her barrister advised her on 25 July 2013. The application was not marked by the Commission as being lodged until 30 July 2013.

[42] I note the Applicant’s barrister argued that her client had not been informed by anyone, including the Fair Work Ombudsman, that her application was time sensitive. The fact that an applicant is unaware of the time sensitivity of an application is no excuse. In any event, there are grounds to doubt whether the Applicant necessarily would have acted promptly to make her application, noting the delay between her barrister’s advice to act “immediately” and the day on which the application was made, in fact.

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

[43] This is not a consideration in this matter.

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

[44] The Applicant took steps after her dismissal to obtain advice about her various concerns.

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

[45] The Respondent makes no claim as to prejudice.

(e) the merits of the application

[46] The parties have sought to have this matter dealt with off the documents and I have not explored the merits of the application. They are of neutral weight in relation to the evaluation I need to make under s.394(2)(b) of the Act, as is ordinarily the case in such matters as this.

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

[47] No developed case was put to me in this respect.

Conclusion

[48] The Applicant’s circumstances relevant to the delay in making her application do not warrant characterisation as being “exceptional circumstances”. The Applicant had opportunities to make her application within time, but she did not do so.

[49] The application under s.394 of the Act is dismissed, as a consequence.

SENIOR DEPUTY PRESIDENT

Hearing details:

Determined on the basis of the written materials

Final written submissions:

27 November 2013

 1   Lawford v Sydney Essential Oil Co. Pty Ltd ([2012] FWA 1718 (2 March 2012) at PN 25.

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