Ms Janelle Walton v Burrup Fertilisers Pty Ltd

[2010] FWA 2652

[2010] FWA 2652

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Ms Janelle Walton
v
Burrup Fertilisers Pty Ltd
(U2010/6943)

COMMISSIONER CLOGHAN PERTH, 1 APRIL 2010

Application for relief re (harsh, unjust or unreasonable) termination of employment.

[1] On 12 March 2010, Fair Work Australia received an application (Form 27) from Ms Janelle Walton (“the Applicant”) pursuant to s.643 of the Workplace Relations Act 1996 (“the Act”).

[2] Ms Walton has sought relief in relation to her termination of employment, which she claims was harsh, unjust or unreasonable.

[3] Ms Walton was employed, at the time of her termination of employment, as a Personal Assistant with Burrup Fertilisers Pty Ltd (“the Employer”).

[4] Ms Walton’s termination of employment took place on 10 April 2008.

[5] The application is unusual in that, Ms Walton’s notice of termination of employment was dated 10 March 2008 and provided for a final date of employment of 10 April 2008. Further, Ms Walton’s last day of work with the Employer was 21 May 2007.

[6] The application was unable to be settled by conciliation and subsequently referred to me for arbitration.

[7] As Ms Walton’s application was beyond the statutory 21 days, she set out the following reasons why the matter should not be dismissed without a hearing as provided for in s.647 of the Act:

“

• On 20 February 2007 during the course of my work duties, I was involved in a motor vehicle accident;

• as a result of the accident, I sustained severe whiplash injuries;

• I have been unable to work as a result of the injuries;

• I consulted solicitor (name of lawyer) in relation to the accident;

• (name of lawyer) is still in the process of finalising my workers compensation claim;

• I initially consulted (name of lawyer)on or around September 2007 and informed him of the circumstances surrounding my accident;

• I was dismissed from my employment with the Respondent by letter dated 10 March 2008;

• immediately after being informed of the dismissal, I informed (name of lawyer) of the letter of termination. I sent the letter of termination dated 10 March 2008…to (name of lawyer) by facsimile;

• upon sending (name of lawyer) the letter of termination…I assumed that the matter relating to my dismissal was being processed; and

• I heard nothing further from (name of lawyer) until September 2009 when he informed me that he did not undertake unfair dismissal applications.”

[8] For the purposes of this Decision, I have deleted the name of the lawyer referred to by Ms Walton.

[9] Having been allocated the application, I wrote to Ms Walton seeking whether she wanted to provide further information on the principles set down by the Industrial Relations Court in Brodie-Hanns v MTA Publishing Ltd (1995) 67 IR 298 at 299-300, relating to the granting of an extension of time. The principles, as set out in my correspondence, and which I must have regard for, are as follows:

• Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.



• Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.



• Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.



• The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.



• The merits of the substantive application may be taken into account in determining whether to grant an extension of time.



• Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.

[10] I forwarded a copy of my correspondence to the Employer for their information and also for any additional comments.

[11] The Employer responded to my correspondence on 23 March 2010. Essentially, the Employer states:

• it is unacceptable to make a claim approximately three years after the date the Applicant last worked and approximately two years since her employment was terminated;



• the Applicant has been in regular contact with lawyers and had ample opportunity to lodge the application; and



• there is readily available information regarding unfair dismissals on the Internet and over the telephone at no charge.

[12] Ms Walton responded on 31 March 2010 and, among other things, repeated her claims regarding the lack of action by her lawyer. Ms Walton states:

“As soon as I received the letter of termination I informed (name of lawyer). I sent letter of termination dated 10 March 2008 to (name of lawyer) by facsimile.

When I did query about my unfair dismissal claim late September 2009 (name of lawyer)replied that he did not deal with unfair dismissal. He did not have the decency to inform me that we had only 21 days to lodge an unfair dismissal claim on receipt.”

FINDINGS

[13] Ms Walton commenced employment with Paramount Pty Ltd in 2004.

[14] Ms Walton’s employment with Paramount Pty Ltd transferred to Burrup Fertilisers Pty Ltd on or about 28 July 2006.

[15] On 20 February 2007, Ms Walton was involved in a motor vehicle accident during the course of her employment and made a workers’ compensation claim.

[16] Between 20 February and mid-May, Ms Walton continued to work, although she took “many days off”.

[17] Ms Walton last worked for the Employer on 21 May 2007.

[18] In September 2007, Ms Walton instructed a lawyer regarding her workers’ compensation claim.

[19] On or around 10 March 2008, Ms Walton received correspondence advising that her employment was to be terminated on 10 April 2008.

[20] Ms Walton’s employment ceased on 10 April 2008.

[21] On or around 10 March 2008, Ms Walton sent, by facsimile to her lawyer, the letter from the Employer advising of her termination of employment. Importantly, Ms Walton states:

“Upon sending (name of lawyer) the letter of termination…I assumed that the matter relating to my dismissal was being processed.”

[22] In September 2009, Ms Walton was advised by her lawyer that, “he did not undertake unfair dismissal applications”.

[23] In November 2009, Ms Walton signed a cost agreement with another lawyer although it is not clear whether this relates to the workers’ compensation matter or her claim for unfair dismissal.

[24] Ms Walton has, at all times, contended that she was unaware that the application had to be lodged within 21 days of termination of employment. While I accept that contention, I have to apply it to all the circumstances surrounding what occurred between the time of termination of employment and lodgement of the application.

CONCLUSION

[25] Although not explicitly submitted, Ms Walton infers that she relied upon her lawyer to look after her interests and adopt the best course of action. In doing so, it is incumbent upon the Tribunal to explore, in principle, whether “representative error” (an error by Ms Walton’s lawyer) was an acceptable reason for delay.

[26] I am unable to reach the conclusion that there was “representative error” in view of the fact that Ms Walton faxed to her lawyer dealing with her workers’ compensation claim a copy of her letter of termination, “assuming” that the matter was being processed. For Ms Walton to persuade the Tribunal that there was representative error, the “foundations” would have to be stronger than an assumption, that her lawyer would process the matter relating to her dismissal.

[27] In the alternative, if I did accept “representative error”, I am left with the facts that Ms Walton became aware that her application for unfair dismissal had not been pursued by her lawyer in September 2009, and yet did not make application to FWA until 10 March 2010. Should I apply a more generous alternative approach for Ms Walton, and consider that she entered into a “cost agreement” with another firm of lawyers on 17 November 2009, there is still a significant delay beyond 21 days to 10 March 2010, when it was finally lodged.

[28] While termination of employment is always a difficult situation and, in this case, it was compounded by an injury at work, I am unable to reach the conclusion that there is a reasonable explanation for the delay in filing the application. Consequently, the substantive application must be dismissed pursuant to s.643(14) of the Act and an order issued to that effect.

[29] I note that in her application, Ms Walton claims that monies are still outstanding from her termination of employment; should this be the case, I suggest that both parties resolve the matter as soon as possible.

COMMISSIONER

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