Ms Tracey Rawston v The Salvation Army Western Australia Property Trust T/A Salvo Stores
[2012] FWA 5445
•2 JULY 2012
[2012] FWA 5445 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tracey Rawston
v
The Salvation Army Western Australia Property Trust T/A Salvo Stores
(U2012/6970)
COMMISSIONER CLOGHAN | PERTH, 2 JULY 2012 |
Unfair dismissal.
[1] On 10 April 2012, Ms Tracey Rawston (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from her former employer, The Salvation Army Western Australia Property Trust T/A Salvos Stores (“the Employer”).
[2] Ms Rawston’s employment was terminated with immediate effect on 9 January 2012.
[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[4] For the Tribunal to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 14 days after the dismissal took effect (see s.394(2) of the FW Act) or such further time as FWA allows pursuant to s.394(3) of the FW Act.
[5] The Employer declined to participate in conciliation and requested that its jurisdictional objection to the lateness of the application be dealt with in the first instance. Consequently, the application was referred to me for arbitration on 4 May 2012.
[6] As Ms Rawston’s application was not made within 14 days after the dismissal took effect, it is necessary for the Tribunal to determine, in accordance with s.394(3) of the FW Act whether exceptional circumstances existed, to allow the application to be made on 10 April 2012, taking into account the following:
(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.
[7] To determine whether exceptional circumstances existed, I issued procedural directions on 8 May 2012 and advised the parties that I would deal with the matter of the lateness of the application by way of written submissions.
[8] The Applicant did not provide any written submissions. Accordingly, I have considered whether exceptional circumstances exist based on the material provided to the Tribunal both at the time of her application and prior to seeking written submissions.
[9] The Employer provided a written submission to the Tribunal on 5 June 2012 and copied that submission to the Applicant.
CONSIDERATION
[10] Ms Rawston’s application contains correspondence from her Employer terminating her employment with immediate effect on 9 January 2012.
[11] Attached to her application is an undated medical certificate which was received by Centrelink Fremantle on 6 February 2012. The certificate states that the onset of a temporary diagnosed condition commenced on 13 January 2012. Further, that the condition renders Ms Rawston unfit for her usual work/study from 13 January to 14 February 2012.
[12] The application also contains correspondence to Fair Work Australia dated 1 March 2012. The correspondence outlines, in five (5) pages, “the reasons for my claim”. Since her employment terminated, Ms Rawston emailed, on 27 March 2012, three (3) representatives of the Employer concerning her termination of employment. In conclusion, the correspondence states:
“PS. This is posted late as Ive been unwell & havnt been able to get out of the house. Can get a drs note.
Also took me along time to find your address”.
[13] On 24 April 2012, the Employer provided a response to Ms Rawston’s application. In the Employer’s response, the lateness of the application is raised as a jurisdictional objection. Specifically, the Employer states:
“4. Ms Rawston has provided a medical certificate stating she was ‘unfit for duties’ until 14 February 2012, and whilst it is disputed that the ‘depression’ caused by her dismissal could incapacitate her beyond ability to complete a simple application form, no medical explanation for the delay beyond 14 February 2012 has been offered.
5. Ms Rawston also notes in the appendix to her application that it ‘took (her) along (sic) time to find (Fair Work Australia’s) address’. It is noted that an applicant’s ignorance regarding their rights or procedural matters was not considered an acceptable explanation for delay in Lim v Downer EDI Mining (2009), and nor should it be in this case.”
[14] As to be expected, Ms Rawston responded by email on 3 May 2012 to the Tribunal asserting that, “as you may be aware depression is a severe condition and I was feeling very low, victimised and totally overcome and could not make decisions within 14 days”.
[15] On 7 May 2012, the Tribunal received a medical certificate dated 2 May 2012. The medical practitioner states that, “in my opinion this person is/has been unfit for work/study from 14/2/12 to 13/5/12”.
[16] I now turn to the Employer’s submission. The Employer contends:
● the medical certificates are general in nature and provide no specific detail as to the nature of the Applicant’s incapacity;
● it is not unusual for persons who consider themselves to be unfairly dismissed to also consider themselves to be “traumatised”. The Employer acknowledges that although the Applicant has not specifically alleged trauma, her medical diagnosis of depression does not warrant an 81 day extension;
● the lack of knowledge of FWA’s address is an unacceptable excuse;
● the general prejudice to the Employer; and
● the lack of submissions relating to paragraphs (b), (c), (e) or (f) of subsection 394(3) of the FW Act.
[17] The statutory timeline position relating to applications seeking a remedy for alleged unfair dismissal is simple. Those employees who believe they have been unfairly dismissed have 14 days from the date the dismissal took effect to make application to FWA.
[18] The vast majority of employees who do make application to FWA alleging unfair dismissal do so within 14 days. However, the Parliament has also provided the Tribunal with the discretion to extend the 14 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 14 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.
[19] There is no dispute that Ms Rawston was dismissed on 9 January 2012. It is also a fact that Ms Rawston did not file her application until 10 April 2012 or 75 days beyond the 14 days standard timeline for filing the application.
What happened within the first 14 days after Ms Rawston’s employment was terminated on 9 January 2012?
[20] I acknowledge that Ms Rawston found her dismissal humiliating, confronting and unfair. However, those feelings are common characteristics in many applications alleging unfair dismissal. I am unable to accept that such feelings are exceptional; such reported feelings are common in many applications for alleged unfair dismissal.
[21] At some time between 9 January 2012 and 6 February 2012, Ms Rawston attended her general practitioner who provided an undated medical certificate which states that the Applicant was unfit for her usual work/study. The certificate demonstrates that Ms Rawston was able to attend her general practitioner and obtain a medical certificate. However, that medical certificate does not, of itself, demonstrate that Ms Rawston experienced exceptional circumstances in which she was unable to make her application to FWA alleging unfair dismissal within 14 days.
What happened after the 14 days and up to 29 January 2012?
[22] Sequentially, I now turn to the fact that between 27 January 2012 and 29 January 2012, Ms Rawston sent the same email to three (3) representatives of the Employer. The email is an extensive and detailed rebuttal of the reasons why her employment had been terminated. I consider it fair to state that if the Applicant was capable of constructing such an email 18 days after her dismissal, she was capable of making a far simpler application to FWA within 14 days or shortly thereafter.
Ms Rawston’s application to FWA
[23] I now turn to the five (5) page correspondence attached to Ms Rawston’s application setting out “the reasons for my claim”. The correspondence is dated 1 March 2012, however, it was not received by FWA until 10 April 2012 with the postscript that the applicant was unwell, could not get out of the house and it “took me along (sic) time to find your address”. This chain of reasoning may be acceptable to the Applicant but I am not satisfied that, in the circumstances, it leads to the conclusion, either individually or collectively, of exceptional circumstances to warrant accepting an application 75 days late.
[24] Finally, I turn to the Applicant’s medical certificate dated 2 May 2012 in which the general practitioner states that Ms Rawston “is/has been unfit for work/study from 14/2/12 to 13/5/12 inclusive”. Medical certificates are legal documents and patients have a responsibility to assist their general practitioner in a timely manner. The Applicant last attended another general practitioner sometime before 6 February 2012. Ms Rawston presented to another general practitioner nearly three (3) months later for the same medical illness. Having done so, the general practitioner backdated by nearly three (3) months their assessment that the patient is unfit for work/study. While I understand that such an assessment is based upon the patient’s history, self reporting of symptoms and the medical assessment, it is not, of itself, sufficient to demonstrate exceptional circumstances in which Ms Rawston was not capable of filing her application within 14 days, or shortly after 14 February 2012, when the first medical certificate expired.
[25] The filing of this application was not made shortly after becoming out of time but 75 days late. As I have previously determined, where applicants have sought a significant extension of time, it is not unreasonable to expect the applicant, in this case, Ms Rawston, to set out compelling circumstances which would “force” the Tribunal to agree that she could not have lodged the application within 14 days.
[26] In conclusion, having considered the material provided by Ms Rawston in her application and subsequently the Employer’s submission, and the provisions of subsection 394(3) of the FW Act, particularly, paragraph (a), I am not satisfied that exceptional circumstances exist to enable the application to be made on 10 April 2012 or 75 days later than the standard timeline for filing the application.
[27] For the reasons outlined above, Ms Rawston’s application will be dismissed and an order issued conjointly with this Decision.
COMMISSIONER
Final written submissions:
Applicant: Written submission not provided.
Respondent: 5 June 2012.
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