Ms Julia Vines v Roadtrim Mining & Civil Contracting Pty Ltd

[2014] FWC 2853

[2014] FWC 2853

FAIR WORK COMMISSION

DECISION

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

Ms Julia Vines
v
Roadtrim Mining & Civil Contracting Pty Ltd
(U2014/5290)

COMMISSIONER WILLIAMS PERTH, 1 MAY 2014

Termination of employment - extension of time.

[1] Ms Julia Vines (the Applicant), has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent is Roadtrim Mining & Civil Contracting Pty Ltd (the Respondent).

[2] The Applicant was terminated on 10 February 2014. The application was lodged on 5 March 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s.394 below.

“s. 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 21 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.”

Are there exceptional circumstances?

The reason for the delay

[5] The evidence of the Applicant’s legal representative Penny LaGreca details the circumstances surrounding the making of this application. The Respondent does not challenge this evidence.

[6] The Applicant first approached Ms LaGreca prior to her dismissal. An agreement between the Applicant and Ms LaGreca was signed on 8 January 2014. Payment to Ms LaGrecas was made shortly thereafter.

[7] During the month of January 2014 the Applicant’s representative provided assistance and advice on her employment difficulties, including contacting the Respondent, to negotiate on her behalf.

[8] The Applicant was terminated on 10 February 2014. The Applicant informed Ms LaGreca of that fact on the same day.

[9] On 11 February 2014 the Applicant called Ms LaGreca to express her frustration and stated that she wished to file for unfair dismissal. The Applicant’s representative, Ms LaGreca, agreed to proceed with this course of action.

[10] On 24 February 2014 the Applicant wrote to Ms LaGreca asking if she needed to provide more information for her unfair dismissal application and if ‘all is well’. Ms LaGreca responded on the same day informing her that:

“ We will contact you with any questions when we are lodging the Application”

[11] On 26 February 2014 the representative wrote to the Applicant affirming yet again that the application was in preparation and asking questions of the Applicant. The Applicant responded on 26 February 2014 and she raised concern about the 21 day time limit for filing.

[12] Ms LaGreca had almost completed the application. However finalisation and filing of the application was overlooked until 5 March 2014.

[13] The facts of this matter are that the application was made two days after the 21 day time limit had expired. I accept that the Applicant herself had very promptly, after her dismissal, instructed Ms LaGreca her legal representative to lodge her unfair dismissal application. The Applicant then diligently provided information and enquired of Ms LaGreca as to the progress of her application even to the extent of raising concern about the 21 day time limit before it had elapsed.

[14] I accept the evidence of Ms LaGreca that the two-day delay in making the application was entirely her error and responsibility.

[15] I am satisfied then that the reason for all of the delay in making this application was representative error and that the applicant is blameless.

Any action taken by the person to dispute the dismissal

[16] The evidence is that the Applicant had engaged in negotiations with the Respondent before her dismissal.

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

[17] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[18] There is not sufficient information before the Commission to form a view on the merits of the application therefore this factor is a neutral consideration.

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

[19] This is not a relevant factor in this case.

Conclusion

[20] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided and have found that all of the delay in making this application was as a consequence of representational error and that the Applicant was blameless in this regard. It is relevant in this case that the Applicant had been contesting the Respondent’s intention to dismiss her before this occurred. Considering all of the relevant factors then I am satisfied that there where exceptional circumstances in this instance.

[21] Consequently I am persuaded that I should exercise the discretion available to allow a further period for this application to be made. An order to that effect will now be issued. Ms Vines application will be referred to a Fair Work Commission Conciliator to conduct a conference in due course and the parties will be notified about this.

COMMISSIONER

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