Natasha Thomas v East Pilbara Independence Support Incorporated T/A EPIs

[2014] FWC 9080

[2014] FWC 9080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natasha Thomas
v
East Pilbara Independence Support Incorporated T/A EPIS
(U2014/12134)

COMMISSIONER WILLIAMS PERTH, 16 DECEMBER 2014

Termination of employment - extension of time.

[1] Ms Natasha Thomas (Ms Thomas or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is East Pilbara Independence Support Incorporated T/A EPIS.

[2] Ms Thomas was dismissed on 27 June 2014. The application was made on 1 September 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

(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.”

[5] On 2 October 2014 the Commission wrote to the applicant explaining the effect of s. 394 and inviting her to provide any evidence or submissions to assist the Commission to determine whether there were exceptional circumstances warranting the grant of a further period within which to make this application.

[6] A response has been provided by Ms Thomas whom has been assisted by the Aboriginal Legal Service in this regard.

Are there exceptional circumstances?

The reason for the delay

[7] Ms Thomas has not provided any information to the Commission as the reasons for the delay in making this application well after the 21 days specified in the legislation.

Whether the person first became aware of the dismissal after it had taken effect

[8] Ms Thomas was made aware of her dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[9] The applicant has not otherwise sought to dispute her dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[10] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[11] There is limited information on which a conclusion could be made about the merits of Ms Thomas’s application. It seems the parties do not agree as to what occurred on 25 July 2014 and without a full hearing this difference cannot be resolved at this point.

[12] Ms Thomas has provided additional information about a series of events and issues that predated the events that triggered the dismissal and occurred in mid 2013 and were the subject of complaints and correspondence through the second half of 2013. It is not clear of the relevance of this material to the substantive unfair dismissal application.

[13] In these circumstances merit is a neutral factor for the determination of the extension of time question

Fairness as between the person and other persons in a similar position

[14] This is not a relevant factor in this matter.

Conclusion

[15] The onus is on the applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days.

[16] I have considered the information provided. In this case there are no acceptable reasons for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances here.

[17] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[18] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 14 November 2014

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