Ms Karla Wilson v Hume City Council

[2010] FWA 9044

[2010] FWA 9044

FAIR WORK AUSTRALIA

DECISION

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

Ms Karla Wilson
v
Hume City Council
(U2010/11736)

COMMISSIONER ROE MELBOURNE, 25 NOVEMBER 2010

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Ms Karla Wilson (the Applicant) in respect of dismissal by the Hume City Council (the Respondent). At the conclusion of the hearing of this matter I advised the parties that I was refusing to allow an extension of time and was dismissing the Application for unfair dismissal remedy for reasons which I now publish.

[2] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:

“(2) [Standard time limit] 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] Subsection 394(3) provides:

“(3) [Extended time limit] 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.”

[4] The Applicant says she was dismissed on 27 January 2010 which was the date she received the dismissal letter from the Respondent. Her application for unfair dismissal remedy was lodged on 21 August 2010. The Respondent says that the Applicant was dismissed on 21 January 2010. This was the date the Respondent says that the Applicant abandoned her employment pursuant to Clause 19.2 of the Victorian Local Authorities Award. Whether the dismissal date is 21 or 27 of January makes very little difference since the application was lodged approximately 200 days after the dismissal.

[5] The matter was listed for hearing on 12 November 2010. At the hearing the Applicant applied for adjournment so that her solicitor could be present. There had been no previous notification that the Applicant sought representation. I rejected the application for an adjournment.

[6] The Applicant did not give sworn evidence.

[7] I asked the Applicant to outline the reasons why her Application had been late. The Applicant submitted that she had in fact made an application on 27 January 2010. She said that she had spoken to Mr Tim Smythe at Fair Work Australia on 27 January 2010. She said Mr Smythe had mailed her the relevant form and that she had posted the form back that week. The Applicant said that she was then admitted to hospital due to serious illness for two months. About three weeks after being discharged from hospital she says that she rang Mr Smythe to check on her Application. The Applicant said that Mr Smythe told her that the form had been received but that no action had been taken because FWA could not contact her. The Applicant says that a new form was then sent to her which she submitted by email on 21 August 2010.

[8] I indicated that in the light of this submission I was inclined to adjourn the matter so that FWA could investigate whether or not there was any record of an earlier Application or earlier contact with FWA. The Respondent did not object to this course of action. I advised the parties that the matter would be heard on 24 November 2010.

[9] I directed that if the Applicant wished to be represented by a solicitor, the necessary form should be submitted. I directed that if the Applicant had any further evidence upon which she wished to rely that it must be provided in advance of the hearing to the Respondent and to the Tribunal.

[10] After the hearing was adjourned, I requested a search be conducted by the Fair Work Australia Registry and also discussed the matter with Fair Work Australia officer who was mentioned in proceedings. There were no emails found between the Applicant and Fair Work Australia and no records of any other communication prior to the current Application being made except for an email of 6 August 2010 from Fair Work Australia to the Applicant at her home email address.  The text of that email was as follows:

“Dear Ms Wilson,

As discussed on the phone please find attached a Form F2 Application for Unfair Dismissal Remedy

I have also attached a form for a Waiver of the application fee.

If you have any questions in regards to either of these please feel free to call me on the number below.”

[11] I wrote to the Applicant and the Respondent on 17 November 2010 and advised them that this was the outcome of the enquiries I had made within Fair Work Australia.

[12] The Fair Work Australia Registry has advised me that it has a clear policy of retaining unfair dismissal application forms which have been submitted even where there are some details missing or where there are difficulties contacting parties.

[13] The Applicant provided some further documentation prior to the hearing of 24 November 2010.

[14] At the hearing on 24 November 2010 I again advised the Applicant of the outcome of the enquiries I had made. The Applicant again asserted that she had made an earlier Application. She added one further detail which was that she still had a copy of the letter she had received in January from Fair Work Australia advising her that there was a copy of the relevant form attached which she could fill in and return. The Applicant had not produced this document before the proceedings on either November 12 or November 24 and didn’t seek to provide it at the hearing on November 24. The Applicant suggested that the earlier Application had been lost in the post but she also continued to suggest that Mr Smythe of Fair Work Australia had acknowledged that Fair Work Australia had received the earlier Application.

[15] I put it to the Applicant that even if I accepted her version of events allowing for two months in hospital and then a three week delay this would put her second contact with Mr Smythe of Fair Work Australia in the third week of April 2010. Yet the email from Mr Smythe is dated 6 August 2010 and the actual Application was made by email on 21 August 2010.

[16] In response to this the Applicant then said that she had been in hospital several times during 2010 and so she might not have contacted Fair Work Australia until after a later period in hospital.

[17] The documents produced by the Applicant mainly go to the question of the merit of the termination of employment and not to the question of time. The Applicant provided a statement from Donna Braybrook. Ms Braybrook states that she handed relevant medical certificates into to the front office of the Respondent. The Applicant provided a copy of a replacement medical certificate which she said she obtained because the Respondent could not find the first medical certificate she had provided. The Applicant says that a line down the middle of the document shows that it was copied on the Hume City Council photocopier proving that they did receive this replacement certificate. The Applicant also provided a copy of a letter from Hume City Council to her dated 14 January advising her that a WorkCover claim form was attached which she should fill out and return to the Council.

[18] The Respondent submitted an unchallenged signed statement from Tracey Maclean, Human Resources Consultant of Hume City Council that there had been no contact between the Applicant and her or anyone else to the best of her knowledge in Council after the 21 January termination and the receipt of the unfair dismissal application dated 21 August 2010.

[19] I turn to consider the particular factors specified in s. 394(3) of the FW Act.

s. 394(3)(a)

[20] The reason for delay proffered by the Applicant relates to the severity of her illness and her claim that she had in fact had made an earlier application. In this sense the Applicant attributes the delay to problems with the administration of Fair Work Australia. The Respondent provided unchallenged evidence that it was not aware of any attempt by the Applicant to discuss the dismissal with the employer or of any earlier contact or application with Fair Work Australia prior to application of 21 August 2010. The Applicant suggests that she did make a bona fide attempt to make a real-time application before the expiry of the 14-day period.

[21] I accept that illness in certain circumstances can provide an exceptional circumstance to justify an extension of time. I accept that a reasonable belief that an earlier Application had in fact been made could also in certain circumstances provide exceptional circumstances to justify an extension of time.

[22] However, I find that the account of the Applicant in this matter is not convincing.

[23] Based on her claim that she was in hospital for two months and then contacted FWA three weeks after that, the contact would have been in late April 2010. The contact of the sort she referred to was in fact on 6 August 2010. I accept that I should allow for some error in the Applicant’s estimates of the time she was in hospital and then waited before contacting FWA. However, this does not explain an error of more than three months.

[24] Apart from the submission of the Applicant there is no evidence that the Applicant submitted an earlier Application.

[25] The delay between Fair Work Australia sending the Application form on 6 August 2010 and the making of the Application on 21 August 2010 itself exceeds 14 days and no explanation for that delay has been provided.

[26] The Applicant submitted the Form by email on 21 August 2010 in response to a letter containing the Form sent by Fair Work Australia on 6 August. If an earlier Form had been sent out in January 2010 in exactly the same manner then it is strange that the Applicant says she submitted that Form by post rather than by email and there is no record of that Form being submitted.

[27] In my view it is likely that the Applicant is mistaken about her having sent in an earlier Form by post shortly after 27 January 2010. In the absence of any other evidence I am satisfied that the Application was made on 21 August 2010 and that there was no earlier Application.

[28] However, even if I am wrong about the fact that there was no earlier Application, the Applicant cannot explain the length of time which elapsed before she made a further contact with Fair Work Australia. The Applicant claims to have spoken to Mr Smythe on two occasions. Once on 27 January 2010 and a second time when she says Mr Smythe says he would send out a second form. We know that a form was sent out by Mr Smythe on 6 August 2010. The Applicant has not provided a satisfactory explanation for the length of delay between the 27 January and 6 August.

[29] Furthermore the Applicant has no explanation for the delay between the form being sent on 6 August and the submission of the Application on 21 August.

s. 394(3)(b)

[30] Ms Wilson first became aware of the dismissal when she received the termination letter on 27 January 2010. However, she had received a letter dated 18 January 2010 which warned that she would be taken to have abandoned her employment if certain documentary information was not provided by 21 January 2010.

s. 394(3)(c)

[31] The Respondent says that Ms Wilson took no action to dispute the dismissal prior to filing the application for an unfair dismissal remedy. A statement from Tracy Maclean, Human Resources Consultant of Hume City Council was submitted to this effect. The Applicant submitted that she contacted Fair Work Australia on 27 or 28 January 2010.

s. 394(3)(d)

[32] There is no prejudice to the employer other than the usual prejudice that accompanies any grant of an extension of time.

s. 394(3)(e)

[33] The Respondent submitted that the Applicant was terminated for unauthorised absence from work. The Respondent also relied upon unsatisfactory performance which in the main related to earlier instances of lateness for work and absences. Two written warnings had been previously issued in respect to these matters. The period of absence prior to the dismissal extended from 22 December 2009 until the 27 January 2010. There is no dispute that the Applicant did provide some advice to staff about her absence. That is the employer was aware that the employee was not attending work due to illness. However, the Respondent says that the notification was not in accordance with policy, the notification was not timely, and the required medical certificates were not provided.

[34] The Applicant contends that she had been subjected to unfair treatment from two managers which led to her illness. The Applicant contends that the severe nature of her illness led to her having difficulties providing the required documentation and notification. The Applicant contends, and this is supported to some extent by a witness Ms Donna Braybrook, that the medical certificates were in fact provided to the Council but were lost by the Council.

[35] The Respondent contends that the Applicant was not dismissed but abandoned employment. If the Respondent’s evidence was accepted, the employer would be entitled to terminate the employment pursuant to an abandonment of employment provision in the relevant industrial instrument. However, it is likely that the termination is still at the initiative of the employer.

[36] If the Applicant’s version of events was accepted then it would mean that the Applicant has an arguable case that the dismissal was harsh or unjust. However, even if the Tribunal was satisfied that the medical certificates had been provided as submitted by the Applicant the Respondent would argue that other aspects of unsatisfactory performance would justify dismissal. I proceed on the basis that if the Applicant's case is accepted she has some limited prospects of success.

s. 394(3)(f)

[37] The factor in s. 394(3)(f) is not relevant in the present case.

Exceptional Circumstances

[38] I adopt the approach to exceptional circumstances set out by Vice President Lawler in Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery. 1

[39] I find that exceptional circumstances do not exist in this case which would justify the granting of an extension of time for the making the Application of approximately 190 days.

[40] The Application for an extension of time is refused. The Section 394 Application for unfair dismissal remedy cannot proceed and that Application is also dismissed.

COMMISSIONER

Appearances:

Ms K Wilson representing herself

Mr S Wilson on behalf of the Respondent

Hearing details:

2010

Melbourne

24 November

 1   Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery, PR994029, 25 February 2010, paras 22-28.

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<Price code C, PR504296>