Ms Natasha Wallam v Shire of Esperance

[2014] FWC 1830

[2014] FWC 1830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Natasha Wallam
v
Shire of Esperance
(C2014/2854)

COMMISSIONER CLOGHAN PERTH, 20 MARCH 2014

Application to deal with contraventions involving dismissal.

[1] On 2 February 2014, Ms Natasha Wallam (Ms Wallam or Applicant) made application to the Fair Work Commission alleging that she was dismissed by the Shire of Esperance (Employer) in contravention of Part 3-1 of the Fair Work Act 2009 (FW Act).

[2] In Ms Wallam’s application, she indicated, in answer to Question 1.1 that she has not been dismissed from her employment. However, the Applicant seeks “reinstatement” with respect to the outcome of the application.

[3] The Applicant asserts that the Employer contravened ss.351, 352 and 355 of Part 3-1 of the FW Act.

[4] Ms Wallam states in her application that:

“Because of my depression I have been unable to function as normal because of no income and trying to keep my house that I am renting in making payments and asking family for support and trying to get another job, any job. This is the reason why my application is late”.

[5] The Employer’s response to the application is that:

● it agrees with Ms Wallam that she was not “dismissed” - the Applicant’s employment ended with the effluxion of time on 31 December 2013;

● in the event that the Applicant contends that she was “dismissed” contrary to the express indication in the application, the application was not made within the statutory timeline of 21 days after the dismissal took effect; and

● it denies that it contravened the general protection provisions of the FW Act, and furthermore, the information provided by Ms Wallam does not demonstrate a breach of the FW Act and contains allegations which were unsubstantiated following an investigation.

[6] On 21 February 2014, the parties were advised of a conference by telephone on 13 March 2014 pursuant to s.368 of the FW Act.

[7] The Employer and the Employer’s representative were present for the telephone conference on 13 March 2014. The Applicant could not be contacted on the mobile telephone number provided to the Commission.

[8] No communication was received from the Applicant to advise that she was unable to attend the conference. My Associate was not able to leave a voicemail message on the Applicant’s mobile telephone seeking why she had not attended the conference.

[9] My Associate on 17 March 2014 in an attempt to again contact the Applicant was not able to leave a voicemail message on her mobile telephone.

[10] On 18 March 2014, the Applicant left a voicemail message for my Associate to telephone her on the mobile number which my Associate had telephoned on two previous occasions.

[11] Pursuant to s.386(2)(b) of the FW Act, a person has not been dismissed if a person was employed under a contract of employment for a “specified time, for a specified task, or for the duration of a specified season and the employment has been terminated at the end of the period”. Ms Wallam states in her application that she was not dismissed and her employment ceased on 31 December 2013. The Employer confirms that the employment relationship ended on 31 December 2013 due to the effluxion of time. For these reasons, I am satisfied that the Applicant was not dismissed, and accordingly, does not meet the requirements of s.365(a) of the FW Act to make a proper application.

[12] In the event that the Applicant claims, contrary to her application, that she was dismissed, the application has not been made in accordance with paragraph 366(1)(a) of the FW Act. Further, on the submissions of the Applicant, I am not satisfied that there are exceptional circumstances pursuant to the criteria in s.366(2) of the FW Act. When a person’s employment ceases, it is a matter of fact that his or her income ceases subject to whatever accrued entitlements they have received. Secondly, there is nothing exceptional in feeling depressed or anxious following separation from employment - unfortunately it is normal, especially when having to deal with the uncertainty of further employment and maintaining their existing accommodation.

[13] Finally, the Applicant failed to make herself available to pursue her application in conference on 13 March 2014 despite having three weeks’ notice.

[14] For all of the above reasons, pursuant to s.587(3) of the FW Act, the application is dismissed.

COMMISSIONER

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