Ms Susan Sykes
[2011] FWA 279
•14 JANUARY 2011
[2011] FWA 279 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Susan Sykes
(C2010/5485)
COMMISSIONER LEWIN | MELBOURNE, 14 JANUARY 2011 |
Application for extension of time–no evidence of medical condition comprising exceptional circumstances–satisfaction required to establish exceptional circumstances.
[1] This Decision concerns an application pursuant to s.366 of the Fair Work Act 2009 (the Act) for an extension of the time in which an application may be made under s.365 of the Act. Ms Susan Sykes was dismissed from her employment at Prism Worldwide (Prism) on 8 or 9 September 2010. There is some disagreement between Ms Sykes and Prism about the date of the termination. Ms Sykes lodged an application for Fair Work Australia to deal with an alleged contravention involving dismissal in Fair Work Australia on 9 November 2010. The application is therefore one or two days out of time.
[2] On 11 November 2010, the application under s.365 of the Act was listed for conference on 1 December 2010. At the conference Ms Sykes appeared on her own behalf. Mr Martin Alder, a solicitor, appeared for Prism with Mr Peter Cahill.
[3] During the conference, Prism objected to Ms Sykes’ application on the basis that the application was out of time. Section 366 of the Act prescribes the time within which applications for the Tribunal to deal with contraventions involving dismissals are to be made and is set out below:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[4] After the conference I wrote to Ms Sykes to confirm the objection of Prism and inform her that she would need to make an application to extend the prescribed time for filing of the application if Fair Work Australia was to deal with the application. A Form upon which to lodge an application for extension of time was attached to that correspondence.
[5] On 14 December 2010 Ms Sykes filed an application for extension of time pursuant to s.366 of the Act. The grounds upon which Ms Sykes relied for her application for extensions as stated on the Form 1 filed on 14 December are as follows:
“1. Lack of available support and information
2. Medical condition affected concentration
3. Medical condition for previous 4 weeks preventing me from walking”
[6] Ms Sykes did not provide any further information or supporting documentation in relation to the application for the extension of time. On 15 December 2010 my Associate contacted Ms Sykes and requested that she advise the Tribunal “what steps you took and when to seek information in relation to the application; the nature of the medical condition affecting your concentration and any supporting material; the nature of the medical condition and the relevant date encompassing the “previous four weeks” which you say prevented you from walking”. In the same correspondence, Ms Sykes was also requested to advise how this affected her capacity to make the application within the prescribed time. Ms Sykes was directed to file this material by the close of Business on 22 December 2010.
[7] On 19 December 2010 Ms Sykes responded that she did not wish to advise the company of her medical history on the basis of her medical history being and remaining confidential. On 20 December 2010 my Associate wrote to Ms Sykes to explain the reasons for whichthe Directions of the 15 December 2010 had been issued. My Associate informed Ms Sykes that I had indicated a willingness to amend those Directions in order that she only be required to serve materials pursuant to the Directions on Prism’s legal representatives, on a confidential basis. Further, Ms Sykes was informed that in the event she chose not to file pursuant to the Directions of 15 December 2010 I would cancel those Directions and proceed to determine the application.
[8] On 21 December 2010 Ms Sykes notified me by email that she was “prepared to disclose to Fair Work Australia but if it will not be considered unless I disclose to Guardian or their representative then I see no point”.
[9] On 22 December 2010 I issued notification to the parties that the Directions of 15 December 2010 were cancelled.
[10] On 14 January 2011, Mr Alden filed a response to Ms Sykes’ application for extension of time.
Statutory considerations
[11] Fair Work Australia may allow an extension of time for the filing of an application under s.365 of the Act if Fair Work Australia is satisfied that there are exceptional circumstances, having regard to paragraphs (a) to (e) of ss.366(2) of the Act, which will be discussed below.
Reason for the delay
[12] The reasons asserted as those causing the delay in the filing of the application are a lack of available support and information and unspecified medical conditions.
Action taken by Ms Sykes to dispute the dismissal
[13] The action taken by Ms Sykes to dispute the dismissal other than the filing of the application under s.365 of the Act, if any, is not explained.
Prejudice to the employer
[14] I doubt that there would be any prejudice to the employer in the relevant sense in extending the time, as the application was only filed one or two days outside the statutory time limit.
Merits of the application
[15] I am not of the view that the application has merit or is entirely without merit. There is insufficient evidence before me to support a finding in either respect.
Fairness between Ms Sykes and other persons in a like position
[16] In my view, no factual circumstances relevant to this consideration have been established.
Consideration
[17] Having regard to the above, in my judgment, the relevant overwhelming consideration is the reason for the delay in filing the application. Given the minimal delay, if Ms Sykes had produced evidence confirming the assertions of the medical reason for the delay in filing the application, I may have given favourable consideration to extending the statutory time limit to the extent necessary. However, where an application for an extension of time is contested, some factual foundation based on confirmatory evidence of the probable cause of the delay is necessary. Moreover, the respondent to such an application must be in a position to understand what if any such evidence is relied upon and be afforded a fair and reasonable opportunity to respond.
[18] In this case, protection of confidentiality over sensitive personal medical information could have been provided and such an arrangement was offered, which would not have prejudiced Ms Sykes.
[19] I am left with entirely unverified assertions as the reasons advanced for the delay in the filing of the application.
[20] The statutory time limit is 60 days. It is unsatisfactory that a period of time to make an application cannot be supported by some confirmatory objective evidence to support the proposition that there existed exceptional circumstances applicable to the filing of the application.
[21] I am not satisfied that there was a lack of relevant information or support available to Ms Sykes to enable her to make the application within the period of 60 days after the dismissal. There exist various telephone information services, including as provided by Fair Work Australia, which could have been utilised. Moreover, the Tribunal’s website provides access to the Fair Work Act 2009. Moreover, in relation to the availability of information and support Ms Sykes was, on what is before me, in no different circumstances than would ordinarily apply to an employee who sought to make an application under s.365 of the Act. Therefore, in my view, it is not possible to conclude that there were exceptional circumstances of this kind which could be said to apply in this regard.
Conclusion
[22] On what is before me, I cannot, on an objective basis, arrive at the satisfaction required that exceptional circumstances did exist which explain the delay in the filing of the application. In my view, the relevant circumstances do not provide the basis for such satisfaction. Accordingly, the power to extend the time within which the application may be made cannot be extended.
COMMISSIONER
Final written submissions:
14 December 2010, Ms Susan Sykes, application for extension of time
22 December 2010, Mr Martin Alden, submissions in reply
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