Ms Melissa Clarke v Active Individualised Family Services T/A Activ Foundation

[2016] FWC 2143

[2016] FWC 2143

FAIR WORK COMMISSION

DECISION

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

Ms Melissa Clarke
v
Active Individualised Family Services T/A Activ Foundation
(U2016/4541)

COMMISSIONER ROE MELBOURNE, 5 APRIL 2016

Application for relief from unfair dismissal - extension of time.

[1] Ms Clarke made an unfair dismissal application on 12 February 2016. Ms Clarke was dismissed effective from 20 January 2016 and was verbally notified of the dismissal at that time. Ms Clarke had been employed since 20 February 2014.

[2] Ms Clarke when submitting the form included an email as follows:

“Further a phone conversation this morning with your office, please find attached a completed F2 form and a completed application to waive fee. I tried to lodge it on your website yesterday, but had problems uploading it & it eventually locked me out. With the note on the header, in Red,

“File Upload/delete failed. This error has been logged & the Administrator has been notified.” Hence the day late in lodging the forms.”

[3] Ms Clarke also on the same day provided a copy of a print out of the frozen page which supports her contention.

[4] Ms Clarke alleges that her dismissal was unfair as she says that there was no problem with her performance and no prior warning or discussion about any conduct or performance issues.

[5] Activ argue that they are responsible for the management of the government funding that supported the employment of Ms Clarke and they also manage payroll on behalf of Mrs Walker with whom Ms Clarke worked. Activ argue that the employment relationship is between Mrs Walker and Ms Clarke and not between Activ and Ms Clarke. Activ say that the pay slip identifies Leonie Walker as the employer and her ABN. Activ say that it was Mrs Walker who terminated the employment relationship not Activ.

[6] The 21^st day after the day on which the dismissal took place is 10 February 2016. The application was therefore two days late. One of those days is explained by the system error.

[7] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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.

[8] Although the period of delay is short there is no explanation for one day of the period of delay. I accept that there is a strong explanation which would support a finding of exceptional circumstances for one day of the delay. However, the absence of a strong explanation for the whole of the period of delay means that the reason for delay does not support a finding of exceptional circumstance.

[9] Ms Clarke was aware of the dismissal when it took place although she did not receive a written termination letter until a week later. This is a neutral factor.

[10] Ms Clarke did not take any action to dispute the dismissal other than lodging the application. This is also a neutral factor.

[11] There is no particular prejudice to the employer beyond the ordinary, particularly given the short period of the delay. This is a neutral factor.

[12] If the facts as alleged by Ms Clarke are true she has a strong case. However, the whole of the evidence is not before me so I cannot have a concluded view about the merits. The case is certainly arguable. The issue of whether or not Activ were the employer is potentially a significant barrier to Ms Clarke’s application. However, the confusion about the identity of the employer is understandable. Ms Clarke gave uncontested evidence that at the dismissal meeting which was attended by Mrs Walker and Activ employees that Mrs Walker said that she was not the employer and it was confirmed by an Activ employee that this was correct and that Activ were the employer. There is no doubt that both Activ and Mrs Walker were aware of the dismissal and also of the application for unfair dismissal. If I was to grant an extension of time I would agree to amend the application to identify the correct employer, if indeed the employer has been wrongly identified. The merits are a neutral factor.

[13] I am not satisfied that any decision I might make would affect fairness between Ms Clarke and others in a similar position.

[14] Taking all of the factors specified in Section 394(3) of the Fair Work Act 2009 into consideration, and particularly the absence of an explanation for the whole of the period of the delay, I am not satisfied that there are exceptional circumstances which warrant the granting of an extension of time in this case. The application is dismissed.

COMMISSIONER

Appearances:

Ms M Clarke represented herself.

Mr R Dewsbury appeared for the Respondent.

Hearing details:

2016

Sydney by telephone to the parties in Perth

March 17

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578743>