Ms Snezana Miller v Four Corners Travel Group T/A African Travel Specialist

[2013] FWC 2476

[2013] FWC 2476

FAIR WORK COMMISSION

DECISION

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

Ms Snezana Miller
v
Four Corners Travel Group T/A African Travel Specialist
(C2013/3631)

COMMISSIONER ROE SYDNEY, 23 APRIL 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] This is a slightly edited version of the decision which was given in transcript on 16 April 2013. This is an application under section 365 of the Fair Work Act 2009, by Ms Snezana Miller alleging contravention involving dismissal by the Respondent, Four Corners Travel Group trading as African Travel Specialists. It is not in contention in this matter that the application was made on 19 March 2013. The employer has objected to the application on the grounds that it was made more than 21 days after the dismissal took effect.

[2] The evidence in this matter is that the dismissal took effect on either 20 or 21 February. The applicant has given evidence that on 21 February at 2 pm she was advised by the employer that she was dismissed and was told that was, “To be fair to my staff.” The applicant has also given evidence that at that time she was told that out of the goodness of his heart the employer would pay her a further week until 28 February so as to give her some time to get another job.

[3] In response to questions the applicant confirmed that at the meeting on 21 February she believed that her employment had come to an end. This is reinforced by the separation certificate 1 which indicates that the employment ceased on 21 February 2013, that the employment commenced on 7 January 2013 and that one week was paid in lieu of notice on 22 February 2013.

[4] I am satisfied from the evidence that one week was paid in lieu of notice. I am also satisfied from the evidence that the applicant was told to leave the place of employment on 21 February and that there was no ability for her to return to the workplace after 21 February and there was no requirement for her to hold herself in readiness for employment between 21 February and 28 February. Email correspondence between the applicant and the accountant of the firm, indicates that on 22 February the accountant wrote to the applicant:

“Attached are two pay slips. The first one is for the four days worked and the second one is for the notice and unused holiday pay.” 2

[5] In response to that the applicant said:

“Thank you for sending me the necessary pay slips.”

[6] I take from that evidence the further confirmation that the week’s pay beyond 21 February was in fact payment in lieu of notice. Therefore, I am satisfied that the dismissal did take effect on 21 February 2013 and the application is out of time because the period from 21 February to 19 March is a period that exceeds 21 days.

[7] I am not satisfied that this period of one week’s pay in lieu of notice is a reason for the delay because there is no evidence that the applicant delayed making the application in these proceedings because she received the one week in lieu of notice. The reason for the delay, as I understand it from the applicant’s evidence, is because she was seeking to understand further the reasons for her termination through communication with the employment agency who had assisted her in getting the job. I do not see that as an extraordinary circumstance.

[8] I am not being critical of the applicant in taking that action after being shocked at her termination and obviously extremely disappointed at her termination after a short period of time. That is quite clear and understandable and it is understandable that she may well have felt that the employment agency was the best way to challenge her termination and try and better understand the reasons for it. It seems to me it is quite a normal circumstance and it is not a reason for delay.

[9] In respect of section 36692)(b), which is the action taken by the person to dispute the dismissal, the applicant says that she did not challenge the termination at the time of the dismissal because she was shocked. I find that to be a reasonable explanation. However, subsequent to that, between 21 February and 19 March, she did not take any action to challenge the termination directly with the employer.

[10] I think it is clear that the applicant did take some action to dispute the dismissal by her communication with the employment agency but she did not take other action including contacting the Fair Work Commission or making inquiries about what action she could take to dispute the dismissal or by contacting the employer directly. The evidence of the applicant was that she did not do research into what her entitlements to contest the dismissal might be until shortly before 19 March, the day the application was made.

[11] In respect of 366(2)(c), the employer accepts and I agree that there is no particular prejudice to the employer given the shortness of the delay. In respect of 366(2)(d), the merits of the application, I have not heard from either party detailed evidence about the issue of the merits of the application and in particular I have not heard evidence from the respondent employer in respect to that matter. Although I could not conclude that the application is without merit, I do not make any other observation about the merits of the application. Section 366(2)(e), which is fairness as between the person and other persons in a like position, is not relevant in the circumstances of this case.

[12] The factors in section 366(2)(a) and (b) are the relevant factors in this matter, that is the reasons for the delay and the actions taken by the person to dispute the dismissal. Neither of those matters can constitute an exceptional circumstance in this case. I am satisfied that in the circumstances of this case there are no exceptional circumstances which would allow me to grant an extension of time for the making of the application.

[13] I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

The Applicant represented herself.

Ms K Sweatman appeared for the Respondent.

Hearing details:

2013

Melbourne

April 16

 1   Exhibit M1.

 2   Exhibit Four Corners 1.

Printed by authority of the Commonwealth Government Printer

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