Ms Margaret Wilkinson v ISS Facility Services Australia Limited
[2012] FWA 2750
•16 APRIL 2012
[2012] FWA 2750 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ms Margaret Wilkinson
v
ISS Facility Services Australia Limited
(U2011/12850)
VICE PRESIDENT WATSON | SYDNEY, 16 APRIL 2012 |
Application for unfair dismissal remedy - application for extension of time for lodgement - whether exceptional circumstances - Fair Work Act 2009 - s.394
Introduction
[1] This decision concerns an application by Ms Margaret Wilkinson for an extension of time for filing an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) concerning the termination of her employment by ISS Facility Services Australia Ltd (ISS).
[2] Ms Wilkinson’s application for an unfair dismissal remedy was made on 20 October 2011. Ms Wilkinson was notified of the termination of her employment with ISS effective 5 January 2011 by letter of even date. She submits the letter was received on 17 January 2011. ISS objected to the application on the basis that Ms Wilkinson filed the application some 274 days out of time, or if Ms Wilkinson’s submissions concerning the date of receipt of the letter of termination are accepted, 262 days out of time.
[3] The matter was listed for mention and programming on 23 January 2012. Directions were made for the filing of written material in relation to the application to extend the time for filing the unfair dismissal application on the basis that the application would be determined on the papers. Ms Wilkinson filed her written submissions on 3 February 2012, ISS filed its submissions in response on 27 February 2012, and Ms Wilkinson sought and was granted an extension of time to file a submission in reply which was filed on 27 March 2012.
The relevant legislation
[4] One of the matters that Fair Work Australia must determine prior to considering the merits of an application is whether the application was made within the period required in s.394(2): s.396(a).
[5] Section 394 of the Act relevantly provides:
“(2) 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) 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.”
[6] It is well established that this section requires a consideration of all of the circumstances and that exceptional circumstances may arise from a single factor or a combination of factors. 1 Ms Wilkinson contends that a combination of factors amount to exceptional circumstances in this matter. I propose to consider the circumstances by reference to the factors contained in s.394(3) of the Act.
The reason for the delay
[7] Ms Wilkinson submits that the delay was a result of the fact that she was recovering from a knee replacement when she was notified of the termination, that she attempted to seek legal assistance but was not able to do so, that she had no knowledge of the statutory timeframes in relation to unfair dismissal applications, that she does not have access to a computer nor internet access and that she has difficulty in writing and expressing herself.
[8] Ms Wilkinson submits that the time taken to heal after a double knee replacement was a significant factor in contributing to the delay in filing the application as her primary focus was working on her recovery to enable a return to work as scheduled. She also contends that as the sole carer of her disabled son she was focused on his ongoing care and her recovery at the time of the dismissal. Ms Wilkinson acknowledges that not having knowledge of the time limitation for making an application for an unfair dismissal remedy does not in itself form a basis for a finding of exceptional circumstances, however she submits that when considered in combination with the other factors contributing to the delay it is a relevant consideration.
[9] Ms Wilkinson submits that not having access to a computer or the internet and her difficulties with writing combined with the other factors outlined that the circumstances constitute exceptional circumstances and the time for filing the application should be extended.
[10] Ms Wilkinson submits that she sought legal advice but was unsuccessful in obtaining representation. She submits that she approached a law firm and was under the impression that they were going to assist her. She submits that she was not advised of any time limits and was subsequently advised that the law firm was unable to assist as it did not practice in the area of employment law. In her reply submission Ms Wilkinson stated that she contacted the two local law firms by telephone shortly after receiving the letter of termination. One firm was closed at the time and the other said that it did not practice in employment law. Ms Wilkinson stated that she did not take any further steps at the time because she did not know what else she could do.
[11] ISS submit that Ms Wilkinson has not quantified the amount of time that elapsed between her seeking assistance from her local law firm and of her being advised that they were not able to assist, nor did she take any action to identify alternative law firms who may have been able to assist her.
[12] ISS submits that the circumstances outlined by Ms Wilkinson when considered both separately or collectively, do not constitute exceptional circumstances and do not provide a reasonable explanation for the extended delay.
[13] Although I acknowledge the difficulties faced by Ms Wilkinson may have presented more than the normal difficulties I do not consider that the reasons for the delay advanced are a fully adequate explanation of the extent of delay involved in this case.
Whether the person first became aware of the dismissal after it had taken effect
[14] Ms Wilkinson submits that she received the letter dated 5 January 2012 notifying her of the termination of her employment by registered post on 17 January 2012. I accept that statement and will regard the application as being 262 days out of time.
Any action taken by the person to dispute the dismissal
[15] In regard to this factor Ms Wilkinson relies on her attempts to obtain legal advice. However, it appears that Ms Wilkinson made no representations to the employer seeking a review of the decision at any time until the unfair dismissal application was filed in October 2011.
Prejudice to the employer (including prejudice caused by the delay)
[16] Ms Wilkinson submits that there is no prejudice to ISS caused by the delay in filing the application, except for the ordinary obligation to defend the application.
[17] ISS submits that the substantial delay prejudices it in that any recollections relevant to the proceedings are likely to have been impaired by the passage of time. ISS submits that this prejudice is beyond the ordinary obligation of defending Ms Wilkinson’s claim.
[18] Given the reasons for termination I do not consider that there is prejudice to the employer beyond that arising from an in-time application.
The merits of the application
[19] Ms Wilkinson submits that the merits of the application are significant. It is her contention that there was no valid reason for her dismissal. She submits that at the time of the termination she had not yet attended her final medical review and at all appointments up to that date she had received indications that she was progressing well and could expect to return to work in mid February 2011.
[20] ISS submits that at the time of the termination of her employment, Ms Wilkinson was not capable of performing the inherent requirements of her job as a cleaner. It submits that Ms Wilkinson’s treating doctor had certified her unfit for duty for at least three months and up to six months from 7 December 2010 and has confirmed by letter dated 21 October 2011 that Ms Wilkinson is considered to be permanently unfit for work.
Fairness as between the person and other persons in a similar position
[21] Ms Wilkinson submits that there are no others in a similar position.
Conclusion
[22] In all of the circumstances I am not satisfied that there are exceptional circumstances justifying an extension of time to the extent involved in this case. The delay was significant and the reasons, although understandable in some respects, fall short of establishing exceptional circumstances. The application for an extension of time and the application for an unfair dismissal remedy are dismissed.
VICE PRESIDENT WATSON
Written Submissions
Ms Wilkinson, Submissions in support of application to extend time, 6 February 2012
ISS, Submissions in response, 27 February 2012
Ms Wilkinson, Reply to Respondents submissions, 27 March 2012
1 Cheyne Leanne Nulty v Blue Star Group[2011] FWAFB 975.
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