Ms Tarlai Iggleden v Lismore Neighbourhood Centre Inc

[2010] FWA 6209

[2010] FWA 6209

FAIR WORK AUSTRALIA

DECISION

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

Ms Tarlai Iggleden
v
Lismore Neighbourhood Centre Inc.
(U2010/8575)

COMMISSIONER RAFFAELLI SYDNEY, 25 AUGUST 2010

Termination of employment - extension of time.

[1] The application to which this decision refers was filed by Ms Tarlai Iggleden (the Applicant). The Applicant sought an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by her former employer, Lismore Neighbourhood Centre Inc. (the Respondent).

[2] The application was lodged on 4 May 2010. The dismissal is said to have been notified to the Applicant on 31 March 2010.

[3] In its response to the application, the Respondent objected to the application on two grounds. Firstly, it put that the application had been lodged out of time. Secondly it put that the Applicant’s fixed term employment had ceased due to the operation of the end date of her contract of employment, being 31 March 2010.

[4] On 8 June 2010, I invited the parties to provide written submissions concerning the objections raised by the Respondent. I will return to the fixed term of employment issue later.

[5] As to the late filing of the application the statutory requirements are set out in section 394(2) and (3) of the Act:

“394 Application for unfair dismissal remedy

. . .

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is 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.”

[6] Clearly, the application was not lodged within 14 days after the dismissal took effect. I therefore need to decide whether there are exceptional circumstances for allowing a further period during which the application can have been made. Section 394(3) sets out matters to take into account in reaching a conclusion that those exceptional circumstances exist.

[7] As to the reason for the delay, the Applicant submitted that soon after the termination she suffered from depression. She was certified as unfit for work for a period of several months. A medical certificate was provided in the Applicant’s material. It indicated that the Applicant was unfit for work or study from 1 May to 1 June 2010. It also described the depression to have begun on 1 April 2010. The Applicant was not mentally and physically able to take action concerning her termination until about 27 April 2010, when she approached Fair Work Australia and the Northern Rivers Community Legal Centre (NRCLC). Her financial situation prevented her from accessing private legal advice any earlier. The application was lodged on 4 May 2010

[8] It was also put that at about this time she had to attend to the needs of her severely disabled daughter.

[9] For its part, the Respondent queried the medical certificate. The certificate was not clear as to the Applicant’s unfitness in April 2010. It also said that the Applicant did not explain why she did not access the services of NRCLC earlier.

[10] I am satisfied that there are acceptable reasons for the delay. It is clear that the doctor diagnosed that the Applicant was suffering from depression and found that the date of onset of the condition was 1 April. I accept the certificate on its face.

[11] Because of the Applicant’s depression I am satisfied with the explanation of the Applicant that the delay in approaching NRCLC or Fair Work Australia was caused by her physical and mental state. The situation with her daughter may also have explained some of her failure to attend to the issue.

[12] It is clear that the Applicant became aware of the dismissal at the time it came into effect or at most, the day after.

[13] As to any other action to contest the termination, I am, on balance, prepared to accept the submissions of the Respondent that the Applicant did not dispute the termination.

[14] I find no prejudice to the Respondent, including because of the delay in filing the application.

[15] As to the merits of the application, I am unable to determine this question in the absence of evidence.

[16] The issue as to fairness between this matter and any going to other persons is not of relevance.

[17] In my view the matters I have referred to above represent exceptional circumstances which are out of the ordinary. In particular, in that regard I have noted the Applicant’s depression, her financial difficulties and her responsibilities towards her daughter.

[18] I find that there are exceptional circumstances and I allow the period for this application to be made to be the date on which it was made.

[19] As to the second jurisdictional objection, the critical question is whether the Applicant had complied with the new offer of employment from the Respondent. That is a question that necessitates the hearing of evidence, particularly as to events on Tuesday, 30 March 2010.

[20] The matter will be listed for hearing in Lismore in that regard at a time to be determined.

COMMISSIONER

Final written submissions:

2010

July 30.

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