Ms Jada Glasson - CarrvIndustry Education Networking Pty Ltd T/A ITEC Employment

[2011] FWA 3292

[2011] FWA 3292

FAIR WORK AUSTRALIA

INTERIM DECISION

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

Ms Jada Glasson - Carr
v
Industry Education Networking Pty Ltd T/A ITEC Employment
(U2011/6647)

COMMISSIONER CLOGHAN PERTH, 30 MAY 2011

[1] On 1 April 2011, Ms Jada Glasson-Carr (“the Applicant”) made application to Fair Work Australia (“FWA”) alleging that she was unfairly dismissed from her employment from Industry Education Networking Pty Ltd trading as ITEC Employment (“the Employer”).

[2] Ms Glasson-Carr has made the application pursuant to s.394 of the Fair Work Act 2009 (“FW Act”).

[3] Ms Glasson-Carr’s application states that she was dismissed from her employment on 14 March 2011.

[4] The application was unable to be resolved at conciliation and was referred to me for arbitration on 9 May 2011.

RELEVANT STATUTORY FRAMEWORK

[5] Section 394 of the FW Act relevantly provides:

394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when FWA 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] Consequently it is necessary for me to consider whether the application was made within the time limit imposed by s.394(2)(a), or alternatively, whether to extend such time limit pursuant to s.394(3) prior to considering the merits of the application.

CONSIDERATION AND CONCLUSION

[7] Prior to making a decision on whether to allow an extension of time in which to accept the application, on 13 May 2011, I wrote to the Applicant’s representative inviting them or Ms Glasson-Carr directly, to provide information on the issues outlined in s.394(3) of the FW Act and any other matters relevant to the late application. I advised Ms Glasson-Carr’s legal representation that, should I not receive a submission by 20 May 2011, I would make a decision on the material provided in Ms Glasson-Carr’s application.

[8] I also invited the Employer to make comment, if they considered it appropriate, on whether I should extend the time to accept the late application.

[9] Neither the Applicant, her legal representative nor the Employer has provided a submission and accordingly, I will determine whether there are exceptional circumstances to allow a further period to 1 April 2011 to accept the application on the papers provided.

[10] Ms Glasson-Carr’s application contains correspondence from the Applicant’s legal representative to the Employer on 18 March 2011 seeking documentation to enable the application to be made. The documentation also contains reference to five telephone calls to the Employer which were unanswered.

[11] On 31 March 2011, the Applicant’s legal representative wrote to FWA seeking an extension of time to file the application due to not having access to the documentation. FWA advised that it was necessary to lodge the application for an extension of time to be considered. The application was received on the following day.

[12] I note also that the Employment Separation Certificate states that Ms Glasson-Carr was dismissed on 21 March 2011.

[13] Should Ms Glasson-Carr have been dismissed on 14 March 2011, her application was four days late. I do not consider a delay of four days prejudicial to the Employer. Should the facts demonstrate that she was dismissed on 21 March 2011, the application has been filed within the statutory timeline.

[14] It is readily discernable from the documentation provided in the application that the Applicant’s legal representative, within days of 14 March 2011, contested the dismissal and sought material in which to make application to FWA. Further, when requests to the Employer for documentation went unanswered, she sought information from FWA as to the processing of what was described as an “incomplete” application.

[15] Having reviewed the conduct of the Applicant following her dismissal on 14 March 2011, I consider that she acted with haste in obtaining legal representation. By 18 March 2011, her legal representative sought material from her former employer under the heading of “Unfair Dismissal Claim”. This correspondence was followed up with telephone calls on the same day, 21 March and 31 March 2011. When it became clear that no material was to be provided, the Applicant’s legal representative made written enquiries with FWA regarding an extension of time.

[16] In conclusion, having considered the reason for the delay, the action taken by Ms Glasson-Carr to contest the alleged unfair dismissal, the minimal prejudice, if any, to the Employer, the Employer’s documented date of dismissal being 21 March 2011 and the remaining provisions of the FW Act, I am satisfied that exceptional circumstances exist to exercise my discretion to extend the time limit to lodge the application to 1 April 2011.

[17] I shall proceed to arbitrate the application and the parties will be provided with procedural orders and a date of hearing.

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