Rebecca Dobrovolny v Skywide Nominees Pty Ltd T/A Ray White Rockingham

[2014] FWC 5444

[2014] FWC 5444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Dobrovolny
v
Skywide Nominees Pty Ltd T/A Ray White Rockingham
(U2014/7030)

DEPUTY PRESIDENT MCCARTHY PERTH, 13 AUGUST 2014

Application for relief from unfair dismissal - extension of time.

[1] On 5 May 2014, Ms Rebecca Marie Dobrovolny (the Applicant) lodged an Unfair Dismissal application (the Application). The Application asserted that the Applicant had been unfairly dismissed from her employment with Skywide Nominees Pty Ltd T/A Ray White Rockingham (the Respondent).

[2] The Applicant claims that she commenced employment on 12 June 2013 and that she was notified of her dismissal on 18 March 2014 and that it took effect on 23 March 2014. The Application has therefore been lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act). The Application form completed ticked the box as “yes” in answer to the question “Are you making this application within the 21 calendar days of your dismissal taking effect?” Clearly that answer is not correct.

[3] I wrote to the Applicant on 14 May 2014 seeking information relating to the issues I must have regard to when considering whether an Application lodged outside the allowable time should be allowed. A response was requested by no later than 28 May 2014. As no response was received I again wrote to the Applicant and advised her that if she did not respond by 17 June 2014 that I would presume she was not proceeding with her Application.

[4] The Applicant responded on 17 June 2014. She advised in essence that:

● The delay was caused by her presumption that her position was made redundant but that she later became aware that another person was employed to perform duties that she had been performing.
● She did not become aware of her dismissal immediately.
● She attempted to get legal advice.
● The employer would not be prejudiced.
● She had not intended to lodge an application but once she became aware of the appointment of a personal assistant she no longer believed that her position was made redundant.

[5] I wrote to the Respondent on 30 June 2014 requesting a response by 3 July 2014. I later extended that time until 4 August 2014 after a request by the Respondent for an extension. The Respondent provided a response on 4 August 2014. The Respondent stated that:

“I refer to the above file and provide the following information for my employer to assist in the claim by [the Applicant].

I am employed as a Sales Consultant with Ray White Rockingham on a commission only basis.

At that time I had my license suspended and due to the fact that my role requires me to have a current driver’s license to conduct my role of a Real Estate Representative.

I was not in a position to continue with the need for a Personal Assistant.”

[6] In the circumstances I rely on the facts asserted by the Applicant.

[7] The Applicant’s primary ground that the reason for the delay was her belief that the termination was not a genuine redundancy I consider this factor does not weigh in favour of the Applicant. On her facts she claims that she became aware 2-3 weeks later that a replacement for her had been employed. She gave no explanation why an application was not lodged immediately.

[8] The Applicant asserts that she did not become aware of the dismissal immediately. However, she became aware of date the dismissal took effect in ample time for an Application to be able to be lodged. This element of my considerations does not weigh in favour of the Applicant.

[9] The Applicant says that she “attempted” to seek legal advice. No details of the nature of the attempt was outlined, however I accept her assertion that she did make an attempt or multiple attempts. Regardless I do not consider this factor weighs in favour of the Applicant as actions taken by her to dispute the dismissal.

[10] I accept that there will be little if any prejudice to the Respondent but I do not weigh this element other than marginally in favour of the Applicant.

[11] I weigh the merits of the Application neutrally as there are disputed factual matters.

[12] I do not consider the fairness between the Applicant and other persons in a like position weigh in favour of the Applicant.

[13] Taking into account the issues outlined above I am not satisfied that exceptional circumstances exist. The Application is therefore dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 17 June 2014.

Respondent, 4 August 2014.

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