Ms Theresa Sibosado v Milliya Rumurra Aboriginal Corporation
[2010] FWA 2640
•1 APRIL 2010
[2010] FWA 2640 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Theresa Sibosado
v
Milliya Rumurra Aboriginal Corporation
(U2009/15154)
COMMISSIONER CLOGHAN | PERTH, 1 APRIL 2010 |
Application for unfair dismissal remedy.
[1] On 18 December 2009, Fair Work Australia (FWA) received correspondence from Ms Theresa Sibosado together with 21 pages of attachments. The correspondence is dated 4 December 2009.
[2] The opening paragraphs of Ms Sibosado’s correspondence are as follows:
“I seek leave to lodge a Unfair Dismissal application to Fair Work Australia out of time.
I have recently become aware of Fair Work Australia (FWA) and understand that an Unfair dismissal application must be lodged within Fourteen (14) days of the dismissal coming into effect.
My employment was terminated 23 September, 2009 by my employer, which I believe was for unfair and unjust reasons.
I was unable to comply with the 14 days period due to poor health – low blood pressure, which caused me to be hospitalized at Broome regional hospital in September 2009 and I have been in poor health as a result of illness up to recently.”
[3] Ms Sibosado was forwarded correspondence by a representative of FWA on 13 January 2010 and advised that she had adopted the incorrect format for filing the application. Ms Sibosado was requested to make an application in the correct format.
[4] On 5 February 2010, Ms Sibosado made an application in the correct format seeking a remedy for unfair dismissal from her employment at Milliya Rumurra Aboriginal Corporation (“the Employer”).
[5] The application was unable to be settled by conciliation and subsequently referred to me for arbitration.
[6] Ms Sibosado states that she commenced employment on 19 June 2007 and her employment terminated on 25 September 2009.
[7] As Ms Sibosado’s application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect (s.394(2)(a) of the Act), it is necessary to determine, in the first instance, whether I should extend the time limit to enable the application to be heard and determined.
[8] On 9 March 2010, I forwarded to Ms Sibosado correspondence (and a copy to the Respondent Employer) seeking whether she wanted to “provide further information” in relation to the late application. In my copy to the Respondent Employer, I invited it to make any comment if they considered it appropriate.
[9] Ms Sibosado requested that I make a determination on the material provided in her application. I did not receive any communication from the Respondent Employer.
[10] I can allow a further period for the application to be made, if I am satisfied there are exceptional circumstances taking into account s.394(3) of the Act, which provides for:
(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.
[11] I now turn to the submission of the Applicant why the time limit for lodging the application should be extended.
Section 394(3)(a) the reason for the delay.
[12] Ms Sibosado claims that she was “unable to comply with the 14 days period due to poor health – low blood pressure, which caused me to be hospitalized at Broome regional hospital in September 2009, and I have been in poor health as a result of illness up to recently”.
[13] In this respect, Ms Sibosado provided communication from Broome Health Services dated 3 September 2009 regarding a “procedure” booked for Friday, 25 September 2009.
[14] I note that on the same day (3 September 2009), Ms Sibosado wrote to the Employer as follows:
“I refer to your correspondence dated 2nd September 2009 and thank Milliya Rumurra for giving me the opportunity to reconsider my resignation. I advise that I accept the offer of full time employment in my previous position, subject to negotiating the following conditions (conditions set out).”
In conclusion, Ms Sibosado advised that she was willing to recommence her duties (presumably subject to her conditions being met) on 8 September 2009 (Ms Sibosado meant 7 September 2009).
[15] On 7 September 2009, Ms Sibosado attended her work for approximately one hour and 25 minutes and, following a workplace incident, returned home.
[16] On 7 September 2009, Ms Sibosado wrote to the Chairperson and Committee Members of the Employer.
“I wish to bring to your attention my position with the organization, I have followed the correct procedures and policy within the organisation to have this issue addressed, I am now seeking your support toward this issue, which needs to be addressed urgently.
On the 14th August 2009, I had tender my resignation with the organization giving two week’s notice, on the 1st September 2009 I had received a letter from the CEO to reconsider my position in receipt of this correspondence I had forwarded a letter addressed to the CEO stating my intention regarding my position with the organization, and that I am willing to return to normal duties on Monday 7th September 2009.”
[17] Ms Sibosado has provided the Tribunal with correspondence from her lawyers which is dated on or about 18 September 2009, which states, in part:
“Ms Sibosado has been informed by you that she will be given notice of termination of her employment on Monday 21 September 2009.
have advised my client to return to work as usual on Tuesday 29 September 2009.
If she is not permitted to return to work I anticipate receiving instructions to issue proceedings in the Industrial Relations Tribunal for her reinstatement.”
[18] Further, I note in copies of correspondence provided by Ms Sibosado that she attended meetings or was in telephonic contact with her lawyer on:
- 25 September 2009 (x 2)
- 29 September 2009 (x 2)
- 7 October 2009
[19] On 23 September 2009, correspondence was forwarded to Ms Sibosado which states:
“Thank you for tendering your resignation on the 14 August 2009. The Board have accepted your resignation..
We are not accepting the working conditions as stated in your letter dated 3rd September 2009.”
Section 394(3)(b) Whether the person first became aware of the dismissal after it had taken effect.
[20] Ms Sibosado became aware on or about 18 September 2009 that, according to her lawyer, “she will be given notice of termination of employment on Monday 21 September 2009”. In fact, Ms Sibosado received, on 25 September 2009, advice to say that her resignation of 14 August 2009 had been accepted and that the Board of the Employer had not accepted her “offer of full time employment in my previous position, subject to negotiation of certain conditions”.
Section 394(3)(c) Any action taken by the person to dispute the dismissal.
[21] Up until the written correspondence to FWA received on 18 December 2009, I have no material to say that Ms Sibosado took any action to dispute the dismissal.
[22] The only material which I have is a Notice of Hearing of Means Inquiry issued by the Broome Magistrates Court on 8 December 2009, in which the Applicant and Employer are parties.
[23] I also have a copy of correspondence to the Fair Work Ombudsman dated 9 December 2009 regarding receipt of a Workplace Complaint Form lodged on 8 December 2009. No details of the complaint are specified.
Section 394(3)(d) Prejudice to the employer.
[24] I make no comment or observation regarding this factor which I must take into account, save to say the obvious, that it is over six months since the resignation by Ms Sibosado was provided to her Employer, and over five months since her offer to recommence employment was rejected by the Employer. Further, the Employer, if it so chooses, has to defend the case, whether now or earlier (if the application had been filed within 14 days).
Section 394(3)(e) Merits of the application.
[25] This provision of the Act requires careful consideration as it could be interpreted by either party, that the Tribunal is pre-judging the merits of Ms Sibosado’s application without the benefit of a hearing, receiving submissions and having evidence tested. I am reluctant to infringe into due process of determining the merits of the application, other than the material which I have adopted in determining whether an extension of time to file the application, is appropriate.
Section 394(3)(f) Fairness as between the person and other persons in a similar position.
[26] It is a fact that the vast majority of applicants seeking a remedy for unfair dismissal, lodge their applications within 14 days after the dismissal took effect. The policy position of the Parliament is that employees, who believe they have been unfairly dismissed, have 14 days in which to make application seeking a remedy. It is only in “exceptional circumstances”, can employees access the “safety valve” for those cases which deserve consideration, when the primary legislative timeline has not been met. The issue to be addressed under this subsection, is simply that each applicant will contend that their circumstances are exceptional, whereas for many of those employees who did file their application within 14 days, will say that those general circumstances applied to them (if not more extenuating circumstances) and they met their statutory obligation. Parliament has framed s.394(2)(a) with precision and, in my view, did not intend s.394(2)(b) to undermine its precision so that “any time is a good time”, to file an application seeking a remedy for unfair dismissal.
CONCLUSION
[27] Having carefully considered all the material submitted in support of the application to extend the time limit in which to file the application, and the provisions of the Act (s.394(3)), I am not satisfied that there are exceptional circumstances to warrant an extension of time beyond the 14 days provided for in s.394(2)(a). My reasons are as follows:
- Ms Sibosado, as early as 18 September 2009, anticipated that her cessation of employment with the Employer would be formally acknowledged;
- her lawyer, again on or about 18 September 2009, indicated that Ms Sibosado was expected to issue instructions to commence proceedings concerning her reinstatement;
- Ms Sibosado’s health procedure was known to her at least three weeks before being carried out. While it would appear that the Applicant received on the day of the health procedure, formal cessation of employment communication from the Employer, it was not entirely unexpected;
- Ms Sibosado was in communication with her lawyer on the day of the procedure and subsequently in the first week after the procedure;
- poor health, of itself, is not exceptional. If employees could claim poor health as a reason for failing to comply with the standard time of 14 days for lodging applications, that of itself, would become self determining for when applications should be filed. I have no material before me to say that Ms Sibosado’s ill health was fatal to her making an application until 4 December 2009; and
- material provided by Ms Sibosado relating to her resignation on 14 August 2009; correspondence of 3 September 2009 from the Applicant to the Employer concerning reconsideration of her resignation and re-employment subject to certain conditions, and finally, the Employer’s acceptance of her resignation.
[28] For the above reasons, the provisions of s.396(a) have not been met, and therefore, I am unable to proceed to hear and determine the merits of the application. An Order to dismiss the application for want of jurisdiction will issue to reflect this Decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, PR995689>
0
0
0