Natalie Raschilla v Ausino West Pty Ltd ATF the Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology

[2016] FWC 2588

[2016] FWC 2588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Raschilla
v
Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology
(U2016/5307)

COMMISSIONER BISSETT MELBOURNE, 26 APRIL 2016

Application for relief from unfair dismissal - application for an Extension of Time - application granted.

[1] Ms Natalie Raschilla made an application to the Fair Work Commission (the Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Raschilla was employed by Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology (Supercrane).

[2] Ms Raschilla’s employment was terminated on 8 February 2016. She lodged her application for unfair dismissal on 14 March 2016. Ms Rashcilla’s application has been made outside the 21 day time limit prescribed by the Act for making an application for unfair dismissal. Ms Raschilla’s application has been made 35 days after her dismissal and is therefore 14 days late. She is therefore seeking an extension to time within which to make her application.

[3] There is a dispute as to whether Mr Raschilla resigned or was dismissed. I have, in this decision, referred to her dismissal. This decision is not a finding that a dismissal took place – that is a matter for later determination.

Legislation

[4] The requirements for making an application for unfair dismissal are set out in section 394 of the Act.

[5] Section 394(2) requires that an application be made to the Commission within 21 days after the dismissal took effect.

[6] Section 394(3) gives the Commission discretion to extend the time available to make an application. It states:

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

[7] In order to determine if she should grant the application to extend time it is necessary to consider each of the criteria in section 394(3).

Reason for the delay

[8] Ms Raschilla says that on 8 February 2016, the date of her dismissal, she contacted ‘Fairwork’ who advised her to get legal advice. She then contacted Slater & Gordon lawyers and subsequently met with a lawyer on 15 February 2016. She says she could not afford the fee required by the lawyer.

[9] Ms Raschilla says that neither Fairwork nor the lawyer advised her of the 21 day time limit for making an application for unfair dismissal.

[10] Ms Raschilla says she emailed Ms Gillian Howe of Supercrane on 15 February 2016 who rang her back that day. She says Ms Howe said that they could work out some amicable resolution without the involvement of Fairwork. She says she met with Ms Howe on 27 February 2016 who advised her to set everything out in writing which she did the following day.

[11] Ms Raschilla requested an update from Ms Howe on 9 March 2016 who advised her that the directors were meeting the following day.

[12] Ms Raschilla says she commenced her application for unfair dismissal that day and sent it to the Commission by mail.

[13] Ms Raschilla says she was aware of the 21 day time limit for making an application when she met with Ms Howe on 27 February 2016 but says Ms Howe told her she could make an application out of time.

[14] Ms Howe disputes the content of the conversation she had with Ms Raschilla on
27 February 2016 but does agree that she told Ms Raschilla that she could make an application to the Commission. She denies in particular however that she said she could make a late application.

When she became aware of the dismissal

[15] Ms Raschilla was aware of her dismissal on the day it took effect – that is 8 February 2016.

Any action taken to dispute the dismissal

[16] Beyond that outlined above Ms Raschilla says she was too shocked on the day of her dismissal to do anything.

Prejudice to the employer

[17] Supercrane makes no submissions on this matter.

Merits of the claim

[18] Ms Raschilla says that had no advance notice from Supercrane as to the reason for the meeting on 8 February 2016 and that she had never received any warnings with respect to her employment.

[19] Ms Raschilla says that she offered her resignation in December 2015 but that Supercrane refused to accept it. She says she returned from the Christmas break on 11 January 2016. She submits that, having rejected her resignation, Supercrane cannot rely on it at will to justify her dismissal. Supercrane’s rejection of her resignation she says means there was no longer a resignation on the table from her. She took some personal leave in February 2016 including on 5 February 2016. Whilst she was on personal leave her access to email and Supercrane’s systems was shut off. She says she texted and called Mr Gerry McLernon, a Director, and requested to meet with him on 8 February 2016 about this.

[20] Supercrane says that Ms Raschilla resigned from her employment on 17 December 2016. It did not suit the Directors that she leaves before Christmas and Mr McLernon asked Ms Raschilla to negotiate a different exit date. It says that at the meeting of 8 February 2016 it was agreed that Ms Raschilla’s resignation would take effect immediately and that she would be paid out the two weeks’ notice she was otherwise required to give.

[21] Supercrane alludes to some financial discrepancies related to Ms Raschilla’s employment and police investigations in relation to these although no details were provided.

Fairness

[22] No submissions were made on this matter.

Consideration

[23] An extension of time can only be granted by the Commission if exceptional circumstances exist taking into account those matters in 2.393(3) of the Act as set out above.

[24] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group where the Full Bench of Fair Work Australia found:

In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional…The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[25] Supercrane does not oppose the grant of the extension of time.

[26] Ms Raschilla insists that she was not made aware, either by Fairwork (who I take to be the Commission or, perhaps, the Fair Work Ombudsman) or the lawyer at Slater & Gordon of the time limit for making an application for unfair dismissal. Whilst I find this difficult to believe I have no basis to doubt the credibility of Ms Raschilla.

[27] Ms Raschilla was aware on 27 February 2016 of the 21 day time limit within which to make the application but still did nothing to make her application for unfair dismissal. Had she taken action that day to make her application it may well have been received within time by the Commission. I accept that Ms Howe, as an experienced HR practitioner, did not tell Ms Raschilla an application made late to the Commission would be accepted although if she did tell Ms Raschilla that she could make a late application for unfair dismissal this would not be untrue. Whether such an application is accepted by the Commission is another matter.

[28] Ms Raschilla appears to have done the right thing at the time of her dismissal – she contacted either the Commission or the Ombudsman for information and sought legal advice. She engaged with her former employer in an attempt to find some resolution.

[29] There is nothing unusual about Ms Raschilla’s circumstances. She took positive steps to determine her rights but for some unexplained reason never sought to ensure that her application was made within time.

[30] Ms Raschilla does, on its face, appear to have some merit to her claim that she was dismissed and did not resign and I am of the opinion that Supercrane has not been forthcoming on the reason they were content to see Ms Raschilla leave some seven weeks after it refused her resignation.

Conclusion

[31] Having considered all of the matters I am satisfied that there are exceptional circumstances arising particular from the termination of Ms Raschilla’s employment that persuade me to grant an extension of time within which she may make her application for unfair dismissal. I have taken into account Supercrane’s lack of opposition to the grant of the extension of time in reaching this decision and the merit of the claim.

[32] I therefore grant an extension of time to Ms Raschilla until 14 March 2016 to make her application for unfair dismissal. An order to this effect will be made.

[33] The file will be returned for further programming.

COMMISSIONER

Appearances:

N Raschilla the applicant.

G Howe of the respondent.

Hearing details:

2016.

Melbourne:
20 April

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579418>