Palermo v WBHO Civil Pty Ltd

[2014] FWC 4552

[2014] FWC 4552

The attached document replaces the document previously issued with the above code on
11 July 2014.

The paragraph numbering in the document has been amended, as the original document issued on 11 July 2014 incorrectly contained two paragraphs numbered [1].

Kylie Kinsela

Associate to Deputy President McCarthy

15 July 2014
[2014] FWC 4552

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Miss Diana Palermo
v
WBHO Civil Pty Ltd
(U2014/6543)
DEPUTY PRESIDENT MCCARTHY	PERTH, 11 JULY 2014
Application for relief from unfair dismissal.

[1] Miss Diana Palermo (the Applicant) lodged an application for Unfair Dismissal (the

application) on 14 April 2014. The Applicant claimed that she had been unfairly dismissed
from her employment with WBHO Civil Pty Ltd (the Respondent) on 10 March 2014.

[2] I wrote to the Applicant on 14 May 2014 advising her that the application appeared to be lodged outside the 21 days time allowed and requested that she provide me with information on matters I must take into account in determining whether exceptional circumstances existed for the time allowed to be extended. The Applicant had previously stated in the application that the reasons for the application being lodged out of time were:

“When I was made redundant I was told by the HR Manager that I had done nothing wrong and my redundancy was due to not requiring a Site Administrator on a project I was guaranteed a role on.

That week of made redundant there was 2 admin positions advertised on SEEK for local candidates, I advised I had accommodation available and was advised these roles were not paying the same as I was as they were more junior to what I had been doing. I advised I was happy for a pay cut.

HR Manager Andy O May advised that if any administration position became available I would be the first in line for that role. WBHO advertised on SEEK and I applied for both administration roles only to be emailed I was unsuccessful in my application.

I have heard since that the project I was due to start has had a Site Administrator assigned to that project.”

[3] In response to my request for the Applicant to provide me with further information she

responded with a number of emails. In essence those emails asserted that the Respondent had
undertaken to re-employ the Applicant.
[2014] FWC 4552

[4]        The Applicant does not dispute that she was dismissed for reason of there being a

genuine redundancy.

[5] The Applicant’s real complaint appears to be about her being assured that if any positions became available that she would be given first preference. The Applicant claims that two positions did become available and that she applied but was unsuccessful. The failure of the Respondent to appoint her she asserts contravenes an undertaking she was given. Notably, the Applicant clearly concedes in the emails she provided that her dismissal was a genuine redundancy.

[6] It seems the Applicant is asserting by the linkage of dates regarding the failure of the Respondent to re-employ and the date that the application was lodged that the expectation of re-employment was the reason for the delay in lodging the application.

[7] The Respondent strongly contests and disputes that the Applicant was, at any time, informed that she would be re-hired for any positions. As a consequence of my reasons below it was not necessary that I make a finding about this disputed fact. I do however accept that the reason for the delay was the Applicant waiting for another position to become available with the Respondent. This however is not a reason that weighs in favour of an exceptional circumstance being found to exist.

[8]        The Applicant first became aware of the dismissal immediately upon it taking effect.

[9] The Applicant does not appear to have taken any action to dispute the dismissal prior to lodging the application.

[10]      I do not consider the employer will suffer prejudice if the application is allowed.

[11] The merits of the application weigh heavily against the application being allowed. Even if time were extended beyond the 21 days it is clear that the dismissal was a case of a genuine redundancy. The Applicant concedes this point and made no suggestion that the Respondent had not complied with any obligations in dealing with the Applicant’s redundancy.

[12] The fairness between the Applicant and other persons in a like position weigh against a finding of exceptional circumstances existing.

[13] I find that exceptional circumstances do not exist. Thus, extra time for the lodging of the application is not allowed.

DEPUTY PRESIDENT

[2014] FWC 4552

Final written submissions:

Applicant, 25 June 2014

Respondent, 26 June 2014

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