Ms Kristy Anne Wood v Woolworths Limited T/A Woolworths Supermarkets

[2010] FWA 9463

Note: An appeal pursuant to s.604 (C2010/6016) was lodged against this decision.

[2010] FWA 9463

FAIR WORK AUSTRALIA

DECISION

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

Ms Kristy Anne Wood
v
Woolworths Limited T/A Woolworths Supermarkets
(U2010/11779)

DEPUTY PRESIDENT HARRISON NEWCASTLE, 10 DECEMBER 2010

Application for unfair dismissal remedy

[1] Ms Kristy Anne Wood was employed by Woolworths Limited trading as Woolworths (“the employer”) from 11 August 2008 to 5 August 2010.

[2] This application for unfair dismissal remedy was filed on 20 August 2010, which is outside the time limit of 14 days prescribed by s.394(2) of the Fair Work Act 2009 (“the FW Act”).

[3] Ms Wood makes application for extension of time which is opposed by the employer.

[4] Section 394(3) affords discretion to Fair Work Australia (FWA) to allow an extension of time. The relevant provision states:

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.

[5] The event which gave rise to the termination of employment occurred in July 2010 and involved a physical altercation between Ms Wood and another employee and damage to a motel room by Ms Wood whilst on assignment in Coffs Harbour; and admissions by Ms Wood that she was under the influence of drugs, which she identified as speed, whilst at work. Ms Wood put that she had been subject to harassment by a fellow worker and had admitted taking speed at the time of the event in the hope that management might assist her. Ms Wood put that she had repaired the damage to the motel room to the satisfaction of the owner.

[6] Ms Wood was stood down from 27 July 2010 while an investigation was undertaken.

[7] In an interview with management on 5 August 2010 Ms Wood tendered her resignation effective immediately.

[8] On 10 August 2010 Ms Wood sought to withdraw her resignation, which was not agreed to or accepted by the employer.

[9] Ms Wood put that in the conversation of 10 August 2010 she was led to believe that the termination of employment took place on 6 August 2010, and accordingly she had until 20 August 2010 to meet the 14 day time limit for lodgement of the application for remedy from unfair dismissal.

[10] Management deny that anything was said to Ms Wood that could have given her that impression.

[11] As a further reason for the delay Ms Wood put that she was not thinking straight at the time.

[12] Ms Wood submitted that she sought legal advice, however, her representative could not attend listed proceedings of 7 December 2010 due to other commitments. Ms Wood sought an adjournment to allow representation, which was opposed.

[13] It was established that Ms Wood was served with the Employer’s outline of submissions and accordingly she and her representative were fully aware of the issues to be dealt with. Ms Wood was afforded an opportunity to contact her legal representative who remained unavailable to her. The adjournment was refused.

[14] An examination of the file and Fair Work Australia electronic records reveals that there is no legal representative on record.

[15] Having regard to the requirements of s.394(3) I find that there is no exceptional circumstance which would justify the granting of extension of time.

[16] The reasons advanced for the delay are not compelling. Ms Wood was aware on 5 August 2010 when she tendered her resignation that her employment was terminated from that time; and she took no action until 10 August 2010 to dispute the dismissal.

[17] Prejudice to the employer arises in the context of expense and time involved in defending a matter which, on the merits, has no reasonable prospects of success.

[18] The question of fairness between Ms Wood and other persons in a similar position does not arise.

[19] The requirement of exceptional circumstance under the FW Act was discussed by Kaufman SDP in Shields v Warringarri Aboriginal Corporation 1. His honour said at paragraph 4 of Warringarri:

The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. Time for making an application under the Act is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act. It seems to me that the alterations between the two Acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word “exceptional” also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act than it was under the WR Act.

[20] Further, in Cheval Properties v Smithers 2 a Full Bench of FWA considered the meaning of the phrase “exceptional circumstances”. The Full Bench referred to the Macquarie Dictionary definition of “exceptional”, and found that s.394(3) required an applicant to demonstrate that there were circumstances supporting an extension of time which were capable of “forming an exception or unusual instance; unusual; extraordinary”.

[21] The fact that an application is only one day out of time does not in itself amount to an exceptional circumstance. FWA has previously refused to grant an extension of time in at least one other case where an application was only one day out of time (see Varcoe v Leo Fardell Pty Limited 3). To grant an extension only because the application is one day out of time would be to ignore the legislation, which sets the limit of 14 days, in a manner which is not allowable.

[22] The application for extension of time is refused.

DEPUTY PRESIDENT

Appearances:

Ms K Wood (Applicant)

Ms R Lesiw, Solicitor, Henry Davis York (Respondent)

Hearing details:

Newcastle

2010

7 December

 1   [2009] FWA 860

 2   [2010] FWAFB 7251

 3   [2010] FWA 6025

Printed by authority of the Commonwealth Government Printer

<Price code A, PR504815>