Rebecca Ferguson v Indesco Pty Ltd

[2012] FWA 3113

[2012] FWA 3113

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Ferguson
v
Indesco Pty Ltd
(U2012/258)

COMMISSIONER DEEGAN CANBERRA, 11 APRIL 2012

Termination of employment - jurisdictional objection - extension of time.

[1] On 13 February 2012 Ms Rebecca Ferguson (the applicant) lodged, pursuant to s.394 of the Fair Work Act 2009 (the Act), an application for unfair dismissal remedy in relation to the termination of her employment by Indesco Pty Ltd (the employer).

[2] On 20 February 2012 the employer lodged a Response to Application for Unfair Dismissal Remedy alleging that that the applicant had resigned her employment on 8 December 2011 and that the application had not been made within 14 days of the date on which the dismissal took effect, as required by s.394(2) of the Act.

[3] According to the initiating application filed by the applicant her dismissal took effect on 16 December 2011. It is apparent that the application was filed either 45 days (on the applicant’s date) or 53 days (on the employer date) after the expiration of the 14 day time limit. It is therefore necessary for a determination to be made as to whether the application will be accepted.

[4] Directions were issued on 24 February 2012 for the filing of written submissions and supporting evidence related to the tribunal’s discretion to extend the time for lodgement of the application pursuant to s.394(2)(b) of the Act. The content of the written submissions was directed to be limited to the jurisdictional issue only. Those directions noted that the matter would be dealt with on the papers unless I determined, having received the submissions and supporting evidence, that a hearing was required.

[5] The respondent complied with the directions. The applicant’s documentation was not filed in the time allowed by the Directions but eventually all the required documentation was received. Having received the written submissions and supporting documentation I determined to decide the matter on the papers and that no hearing was required.

[6] Section 394 of the Act provides as follows:

394 Application for unfair dismissal remedy

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

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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] From the documents filed by the parties it is apparent that:

• the applicant was employed by the employer from 29 November 2010 as a senior civil engineer ;



• on 8 December 2011 the applicant sent an email to her supervisor asking him to please “accept this as my resignation” and stating that she “would like to be gone by the end of the year;”



• on the same day the applicant sent a letter to several of her colleagues indicating that it was best if she and her employer “part ways”;



• on 14 December 2011 the applicant was notified that her resignation was accepted;



• the applicant did not attend her place of work after 14 December 2012, and left Australia to return to the United States on 23 December 2011.

[8] The applicant submitted that she had not filed her application within the 14 day time limit mandated by the legislation as:

• she had to move back to the US;



• she had been looking for alternative work and a place to live and did not have access to the internet; and



• she had been allowing the employer time to respond to her claim for underpayment and the response was not forthcoming until 25 January.

[9] It was the employer’s submission that within 14 days of the date upon which the applicant claimed to have had her employment terminated she had:

• indicated to the employer that she considered she had a claim against it and had received advice from FWA in that regard;



• had had access to the relevant forms and time to complete them;



• made a deliberate decision to pursue her claim directly with the respondent rather than file with FWA.

[10] I have considered the question whether a further period should be allowed for the lodgement of this application in light of those matters set out in s.394(3) of the Act.

[11] I do not accept the reasons given by the applicant for the delay in filing her application as establishing the existence of “exceptional circumstances”. The documentary evidence she filed confirms the employer’s claim that she and her colleague Mr MacHatton had sought advice from FWA about the termination of their employment and their final salary payments. Despite receiving this advice the applicant took no action to make an application for unfair dismissal at that time.

[12] The applicant did not perform work between 13 December and her departure from the country on 23 December 2011. She claims to have been fully occupied in making the arrangements for her departure from Australia. I have also taken into account the Christmas New Year holiday period. These factors may provide some explanation for her failure to lodge an application in that period but does not explain the failure to lodge in the period 3 January until 13 February 2012 On the information provided by the applicant I am not persuaded that it was not possible for her to access the internet during that period.

[13] The applicant took no action to directly contest her claim of unfair dismissal with her employer until 25 January 2012. On the documents provided by the applicant and the respondent it is apparent that from 13 December 2011 until 25 January 2012 the applicant dealt with her employer only though her colleague Mr MacHatton. The applicant gives no explanation for the further delay in filing her application between receiving a response to her email to her former employer on 30 January and filing her application on 13 February 2012.

[14] The employer claims no prejudice resulting from the delay in filing the application.

[15] It is apparent from the documentation filed by the applicant that she resigned her employment but is in dispute with her employer as to the time at which the resignation was to take effect. It appears that she believes that she was entitled to a larger final salary payment than that made by her employer. The documentation the applicant provided shows that on 8 December 2011 she advised her employer that she wished for her employment to finish by the end of the year. 1 In her initiating application, filed on 12 February 2012, she claimed that she had intended to see her project through to its end which would have entailed her employment continuing until the end of January 2012. However, in her submissions filed on 26 March 2012 she claimed that she expected her employment to continue through until early February.

[16] The employer states that after submitting her resignation of 8 December the applicant worked until 13 December and then absented herself from the workplace. Her close colleague, Mr MacHatton (also from the US), who resigned the same day as the applicant met with the employer on 14 December 2011 “to clarify the details of the resignations and departure dates for both the Applicant and Mr MacHatton” 2. The Applicant was sent a copy of the minutes of that meeting. It is the employer’s position that an arrangement was reached whereby the applicant was not required to work out her notice period and her flight to the US was paid by the employer. The applicant was paid until 22 December 2011 and left the country on 23 December 2011.

[17] The applicant appears to be pursuing an unfair dismissal application on the basis that it was her desire to continue her employment until late January and that she did not receive her full termination pay.

[18] While the applicant’s claim for unfair dismissal appears, on the information provided, problematical to say the least, I am unable to conclude that the application is totally without merit but make no further finding on this matter.

[19] The matter of fairness as between the applicant and other persons in a similar position is of little relevance to my decision in the circumstances of this case.

[20] Taking all the matters set out in s.394(3) into account I am not satisfied that there are exceptional circumstances in this matter such that I should allow further time for the filing of the application.

[21] The application is dismissed.

COMMISSIONER

 1   Resignation letter, signed by the applicant, dated 8 December 2011

 2   Respondent’s submissions, page 2 at paragraph 4.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR522313>