Nimpha Burns v Mantra Group Pty Ltd T/A Mantra 2 Bond Street

[2018] FWC 4003

[2018] FWC 4003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nimpha Burns
v
Mantra Group Pty Ltd T/A Mantra 2 Bond Street
(U2018/4148)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 5 JULY 2018

Application for an unfair dismissal remedy – extension of time required – no exceptional circumstances – application dismissed.

[1] On 20 April 2018, Nimpha Burns filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of her employment by the respondent, Mantra Group Pty Ltd, which took effect on 21 March 2018.

[2] The application was heard today, 5 July 2018. The applicant represented herself. Ms E Thiessen, Regional Human Resources Manager, appeared for the respondent.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[4] Section 394 of the FW Act provides that applications must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The application in this instance was made 30 days after the dismissal took effect.

[5] Section 394(3) of the Act provides that:

‘(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.’

[6] With regard to the reason for the delay, the applicant says that she was learning about the Commission’s role, and had trouble understanding ‘the large documents’ on the Commission’s website.

[7] The applicant says that straight after she was told she was being terminated, she approached Legal Aid NSW, as she was unsure what she needed to do. An appointment was made on 17 April 2018. At that appointment, she was advised that she was too late and that she should contact the Fair Work Commission. She did so and was sent the F2 form by email. She says that once she completed the form, she handed it in to staff at the Commission’s premises at 80 William Street, East Sydney.

[8] While it is hard not to have some sympathy for the applicant’s circumstances, her explanation essentially amounts to pleading ignorance of the relevant legal provisions. The Commission is generally unwilling to hold that this is an acceptable reason for delaying making an unfair dismissal application.

[9] The applicant became aware of her dismissal on 20 March 2018, the day before it formally took effect.

[10] The only action the applicant has taken to dispute her dismissal is the unfair dismissal application itself.

[11] There would be no particular prejudice to the employer in accepting the application, beyond what any employer would face in having to defend an unfair dismissal application.

[12] With regard to the merits of the application, the applicant was dismissed for rude or abusive behaviour. She had received at least two prior warnings for similar behaviour over the 12 months of her employment with the respondent. Without having the opportunity to test a series of competing factual claims by the applicant and the respondent, I am unable to find that the application is completely without merit.

[13] There is no reason to believe that the applicant was treated differently to any other person in a similar position.

[14] Taking into account all these factors, I am not satisfied that there are exceptional circumstances that would justify allowing the applicant a further period beyond the normal 21 days to make her application.

[15] Her application is accordingly dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

N Burns, the applicant, in person.

E Thiessen for Mantra Group Pty Ltd T/A Mantra 2 Bond Street.

Hearing details:

Sydney.
2018.

July 5.

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