Ms Marie Kane v South Eastern Legacy trading as South Eastern Group of Melbourne Legacy Inc

[2010] FWA 9917

[2010] FWA 9917

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Ms Marie Kane
v
South Eastern Legacy trading as South Eastern Group of Melbourne Legacy Inc
(U2010/13403)

COMMISSIONER SMITH DARWIN, 22 DECEMBER 2010

Extension of time—granted.

[1] The following decision, now edited, was issued during proceedings conducted on 17 December 2010.

[2] This is an application by Ms Marie Kane for an extension of time in which to lodge her application pursuant to s.394 of the Fair Work Act 2009 (the Act). In support of her application, Ms Kane states that whilst a letter of 14 September headed “Termination of Employment” was purported to be signed on that date, she did not receive the letter until 23 September 2010. The letter arrived at the post office on the 22 September.

[3] Ms Kane states that she was being treated for issues relating to her eyes which caused her to lack concentration and sleep and that made it difficult for her to fill in the forms and to exercise her rights. However, she submits that on 7 October she lodged the application and to support that she attaches to her application a post office receipt. The matter was not received by Fair Work Australia (FWA) until 19 October.

[4] In Ms Kane’s view she lodged her application two days out of time. Notwithstanding that, the legislation makes it clear that the matter ought be lodged within 14 days. I have examined s.394(3) of the Act and I have taken into account the reasons for the delay; namely, her illness and the postal delay the application being received by FWA.

[5] Furthermore, I have taken into account that Ms Kane first became aware of her dismissal on 23 September. I have taken into account that she has taken some advice, although she has not been able to indicate when that advice was taken. I have taken into account whether or not there is any immediate prejudice to the employer.

[6] As to the merits of the application, given that there is a contest between the parties as to the factual position and the appropriate response to that position, I am unable to find that on the applicant’s own case it is wholly without merit.

[7] Turning to the question of the fairness between this person and other persons in similar positions; I have had regard to the submission that there was a debilitating eye issue which left her in a position to not act as quickly as she otherwise would. In addition I have had regard for the combination of both delays in delivery of mail, together with the argument which is still unresolved, that it was an abandonment of employment rather than a termination of employment.

[8] In all of these circumstances, I have decided to extend the period in which the application can be made and the matter will now be referred.

COMMISSIONER

Appearances:

M Kane the applicant.

R Medina on behalf of South Eastern Legacy.

Hearing details:

2010.

Melbourne:

December, 17.

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<Price code A, PR505384>