Ms Sara Koerner v Masterwize Pty Ltd

[2020] FWC 5061

[2020] FWC 5061

FAIR WORK COMMISSION

DECISION

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

Ms Sara Koerner
v
Masterwize Pty Ltd
(U2020/11938)

COMMISSIONER RIORDAN SYDNEY, 23 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 3 September 2020, Ms Sara Koerner (the Applicant) filed an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Applicant’s application alleged that she was unfairly dismissed by Masterwize Pty Ltd (the Respondent) on 24 June 2020.

[2] Section 394(2) of the Act provides that an application for unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further period as the Fair Work Commission (the Commission) allows.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).

[3] The Applicant’s application was filed 71 days after she was dismissed. As such, the Applicant’s application was filed 50 days outside the 21-day timeframe provided by section 394(2)(a) of the Act. In order for the Applicant’s application to proceed to a merits hearing the Applicant needs to show that there were exceptional circumstances which prevented her from filing her application within the statutory time limit. 1

[4] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[5] I now consider these matters in the context of the Application.

The reason for the delay

[6] At the Hearing, the Applicant claimed that she had been experiencing COVID-19 symptoms for the entirety of the 50 days prior to her application. After questioning from me, the Applicant admitted that while she had a sore throat during this time, this aliment had not resulted in her incapacity to such an extent as to prevent her from lodging her application.

[7] The Applicant also advised that she did not have the money to pay her application fee at the time of her termination. The Respondent provided, in their Form F3, a copy of the Applicant’s final pay slip which showed that the Applicant was paid in excess of $1600 at the time of her termination. After questioning from me, the Applicant agreed that she was paid that money but that she believed that this payment was not relevant to this matter. After further questioning, the Applicant finally agreed that her inability to pay was not a relevant consideration.

[8] The Applicant also advised that she has been involved in two prior unfair dismissal applications. Based on her experience, the Applicant claimed that she had 12 months to lodge her unfair dismissal application with the Commission. The Applicant agreed that this issue was her sole justification to claim an exceptional circumstance for the lateness of her application.

[9] The Applicant’s understanding is misconceived. As stated above, the Applicant had 21 days from the date her dismissal took effect in accordance with section 394(2) of the Act. In Nulty v Blue Star Print Group Limited a Full Bench of the Commission held:

“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 2

[10] I find that there that there was no valid reason put forward by the Applicant that would identify the existence of an exceptional circumstance.

Whether the person first became aware of the dismissal after it had taken effect

[11] The Applicant was advised, in writing, of her termination on 24 June 2020. I have taken this into account.

Any action taken by the person to dispute the dismissal

[12] Whilst it would appear that there was some contact between the Applicant, the Respondent and the Respondent’s clients, no tested evidence of these interactions are before the Commission. I have taken this into account.

Prejudice to the employer

[13] The Respondent has made no submissions in relation to prejudice. In Brodie Hanns v MTV Publishing Pty Ltd it was held:

“3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.” 3

[14] I have taken this into account.

The merits of the application

[15] The Respondent claims that it provided the Applicant with a number of verbal warnings and two written warnings. I note that the final written warning was provided on 10 June 2020.

[16] In Kornicki v Telstra Network Technology Group, the Commission held:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 4

[17] In Kyvelos v Champion Sock Pty Ltd, a Full Bench of the Commission held:

“[14]…The Commission should not embark on a detailed consideration of the substantive case.” 5

[18] Taking into account the obiter in Kornicki and Kyvelos, I am satisfied that it would be inappropriate for the Commission to make any comment in relation to the merits of the matter. I find that this issue is a neutral consideration in my determination.

Fairness as between the person and other persons in a similar position

[19] I am not aware of any other employee of the Respondent in a similar situation to the Applicant. I have taken this into account.

Conclusion

[20] I have carefully considered and taken into account all of the evidence and submissions that have been provided by the parties.

[21] Having found that the Applicant did not have a valid reason for filing her application 50 days after the statutory time limit, I am satisfied that there are no exceptional circumstances in existence, which would warrant the granting of an extension of time for the Applicant to file her application.

[22] The jurisdictional objection of the Respondent is upheld.

[23] The Applicant’s unfair dismissal application is dismissed.

[24] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR722954>

 1   Nulty v Blue Star Print Group Limited [2011] FWCFB 975 at [13]

 2 Ibid at [14].

 3 (1995) 67 IR 298, 300.

 4   Print P3168.

 5   Kyvelos v Champion Socks Pty Ltd Print T2421, at [14].