Ms Joan Nielson VD & R Community Services Pty Ltd

[2013] FWC 6956

[2013] FWC 6956

FAIR WORK COMMISSION

DECISION

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

Ms Joan Nielson

V

D & R Community Services Pty Ltd
(U2013/9902)

COMMISSIONER SIMPSON BRISBANE, 8 OCTOBER 2013

Application for relief from unfair dismissal - Jurisdictional Objection out of time - no exceptional circumstances - application dismissed

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) by Ms Joan Nielson (“the Applicant”) who alleges that the termination of her employment with D & R Community Services Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[2] The application was filed on the 24 May 2013. The matter was listed for a conciliation conference however the Respondent requested that a Jurisdictional objection be heard prior to a conference being held. It is common ground the termination had effect from 11 February 2013. The last date on which the application could have been filed within time was Monday 4 March 2013. The Application was filed on 24 May 2013 making it 79 days out of time. The matter was then listed for directions on 10 September 2013.

[3] At the direction hearing an application for legal representation was granted to the Respondent for reasons set out in transcript 1 for the purposes of the Jurisdictional objection only at that stage. In the course of the directions hearing the Applicant was asked about correspondence on the file dated 8 July 2013 and received by the Tribunal on 16 July concerning the reasons for the Application being filed out of time. It appears this material was filed following a discussion between the Applicant and a member of the Unfair Dismissal Team following the filing of the Respondent’s objection. Both parties were invited to make oral submissions in relation to the Jurisdictional objection at the directions hearing on 10 September.

[4] The Respondent pressed that the Applicant had already been afforded an opportunity to make her argument concerning the granting of an extension but in the circumstances where the matter had been listed for directions only, despite having an opportunity to address the objection on the day I decided to grant a further opportunity to both parties to submit any additional written submissions on any other matters they wanted to raise in regard to the objection. The Applicant and the Respondent both submitted further material on the Jurisdictional objection on Friday 13 September 2013.

[5] The Applicant’s only explanation for the filing the application out of time was that she was told by the Respondent that she had a ‘criminal record’ and that anyone with a history of assault against them cannot be employed. The Applicant said she waited several weeks after her termination to receive paperwork from the police, and after waiting ‘a couple of weeks’ she visited the Cherbourg Police Station and was told the officer in charge was not available and that he would contact her upon his return to work. The Applicant said she followed up with the police again on 3 April 2013 and was told at that time that there was not enough evidence for a case to proceed.

[6] The Applicant said she then contacted Fair Work. She said she thought it to be the right thing to do to wait for the police to contact her, and didn’t realise that it was going to take the amount of time that it did. It appears from her submissions both at the directions hearing and in writing that she anticipated she may be charged with assault and when this did not ultimately occur decided to file an unfair dismissal claim. Even if the explanation provided was accepted as being an exceptional circumstance justifying an extension of time from 4 March to 3 April 2013 when the police advised her no assault charge would be made, it does not explain the delay between 3 April and 24 May 2013 when the Application was ultimately filed.

[7] The Respondent submits the terminated letter of 11 February which the Applicant acknowledged receipt of stated clearly as follows;

“As a result of your actions on 5 February 2013 I deem that your conduct in the course of your employment was conduct that engaged in assault and under these circumstances your continued employment during a notice period would be unreasonable.

I hereby notify you that I consider that your actions constitute serious misconduct warranting summary dismissal, effective from 11 February 2013.”

[8] The Respondent said the letter clearly stated the reason for termination, and therefore the Applicant’s reason for delay is not adequate. The Applicant appears to have operated under the misunderstanding that her termination was somehow contingent, or reliant upon an assault charge being made to the police and a charge being laid. The Applicant was simply mistaken in this belief, and appears also to have not understood that whether a complaint to the police led to a charge or not had no bearing on her capacity to file an application for unfair dismissal remedy. This misunderstanding on the Applicant’s part is not an exceptional circumstance explaining the Applicant’s reason for delay.

[9] The Applicant confirmed she was aware of the dismissal on the date it occurred. The Applicant does not appear to have taken any action to dispute the dismissal before 24 May 2013 other than to make contact with the police to seek to clarify whether she would be charged with assault. There may be some prejudice caused to the Respondent by the delay in that a considerable time has elapsed since the date of the alleged incident that led to the dismissal potentially impacting on the quality of evidence. As the allegations go to contested facts I intend to treat the merits as neutral in consideration of whether to extend time.

[10] In consideration of the factors in s.394 I am not satisfied exceptional circumstances exist justifying the extension of time sought. On that basis the Application for unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

Ms Nielson appeared on her own behalf.

Ms Bolzon appeared on behalf of the D & R Community Services Pty Ltd

Hearing details:

2013.

Brisbane:

10 September.

 1   Transcript dated 10 September 2013 at PN 85-93.

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