Robyn Catherine Will v Specifying Dynamics Pty Ltd
[2009] FWA 579
•9 OCTOBER 2009
[2009] FWA 579 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Specifying Dynamics Pty Ltd
(U2009/10590)
COMMISSIONER ROBERTS | SYDNEY, 9 OCTOBER 2009 |
Termination of employment - extension of time.
[1] This decision concerns an application lodged by Ms Will on 21 July 2009 for relief pursuant to s.659 (discrimination or other prohibited reasons) of the Workplace Relations Act 1996 (the Act) for the alleged unlawful termination of her employment by Specifying Dynamics Pty Ltd (the Company).
[2] In her application, Ms Will states that the termination of employment took effect on 11 June 2009. Accordingly, her application was filed some 19 days outside the 21 day time limit prescribed by the Act and therefore requires me to consider whether to grant Ms Will an extension of time for filing. An extension of time was opposed by the Company which also objected to conciliation before determination of the application to extend time.
[3] Directions were issued on 10 August 2009 for the filing of submissions, witness statements and any supporting documents. The submission process concluded on or about 9 September 2009. During a hearing before me on 9 October 2009 by telephone, the parties made brief submissions and sought to rely on the written submissions filed.
[4] I will now proceed to determine the extension of time application on the information provided and applying the relevant legislative provisions.
Legislative Framework
[5] Subsections 643(14) and (15) of the Act provide:
“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”
[6] The following Note appears under subsection 643(15):
“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
[7] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 1
"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[8] In Cruz and Australia Post Corporation 2(Cruz), a Full Bench of this Commission said of Brodie-Hanns:
“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 3
Background
[9] Ms Will was employed by the Company from on or about 12 January 2009 until on or about 11 June 2009 as a Marketing Assistant. According to Ms Will, the Company terminated her employment whilst she was on sick leave and following a complaint by her to the Workplace Ombudsman (The Ombudsman) in relation to her wages. The Company maintains that the termination of employment was lawful.
[10] Ms Will filed an earlier application pursuant to s.643 of the Act on 11 June 2009 but withdrew that application on or about 17 June 2009. She then filed a new application, which is the subject of this decision. Both applications were based only on an alleged contravention of s.659 of the Act.
Explanation of the delay
[11] In her form R27 (application for relief), Ms Will states: “I originally lodged an application the day that I was terminated but withdrew my application because I was unsure about it. However, I have had a claim in with the Workplace Ombudsman regarding unfair pay and was informed last week that I could file for unlawful dismissal based on the fact that I was terminated whilst on sick leave. So I would like to continue with my application for unlawful dismissal based on the facts that I was terminated because I contacted the workplace ombudsman regarding pay, and also because I was terminated whilst on sick leave if this is still possible.”
[12] Ms Will’s written submissions expanded on the reasons set out above. Those submissions were, in summary:
- She withdrew her first application as “I was just under 7 months pregnant at the time and worried about the effects the stress could have on my pregnancy and unborn child. My obstetrician had informed me of the dangers that high stress levels can have throughout a pregnancy; that too much stress can cause premature labor as well as other complications.”
- She telephoned the workplace on 11 June 2009 to advise that she would not be coming to work due to illness. She was informed shortly after her telephone call that her employment was to be terminated on the ground that she had made a complaint to the Workplace Ombudsman.
- She had told the Company that she intended to resign in mid-July rather than proceed on maternity leave.
- On 9 June 2009 she had conversations with other colleagues concerning the correct rate of pay applying to their positions. She denied setting out to cause unrest within the office.
- She received the sum of $100.81 following an investigation by the Ombudsman.
[13] Attached to Ms Will’s submission was a copy of a claim form signed by her and submitted to the Ombudsman dated 9 June 2009 together with a letter from the Ombudsman dated 6 August 2009 acknowledging her claim and stating that such claim was received on 12 June 2009.
[14] Also attached to Ms Will’s submission were various documents, including copies of payslips and a medical certificate covering the period 10 June to 12 June 2009 inclusive, which states that she reported that she was suffering from anxiety.
[15] In its submissions, the Company maintains that Ms Will was on annual leave when her employment was terminated and she was paid one week’s pay in lieu of notice. In the Company’s submission, that occurred on 10 June 1009. Ms Will had wanted to resign effective from 19 June 2009 but was asked to work until the end of the month but the Applicant was determined to leave employment on 19 June. Ms Will was a disruptive influence in the office and this was the reason for the termination of employment.
[16] In reply to the Company’s submissions, Ms Will said that she was not on annual leave at the time of her dismissal and denied advising that she wished to leave the Company on 19 June 2009. She maintained that she “told the Company that I would be finishing some time in July instead of taking maternity leave, but no dates were ever discussed.”
[17] The above is a basic summary of relevant points made by each side, it is not meant to be exhaustive. In the making of this decision I have paid regard to all of the submissions made.
Action taken by the Applicant
[18] The Applicant does not appear to have taken any action in relation to the termination of her employment beyond the filing of the (later discontinued) application for relief on 11 June 2009 and the further application for relief on 21 July 2009. The dealings of the Applicant and the Company with the Ombudsman do not constitute action taken by the Applicant in relation to termination of employment.
Prejudice to the Respondent
[19] The Company does not specifically claim that it would suffer any prejudice if an extension of time is granted. However, the absence of a specific claim of prejudice by the Company is not of itself a positive reason to extend time. In the circumstances of this particular case, I find that there would be prejudice to the Company in the granting of an extension of time but not to an extent which would make it a factor militating in favour of a refusal to extend time.
Merits of the substantive application
[20] An application for an extension of time does not require a detailed assessment of the merits of the substantive application, but those merits may be taken into account in determining whether to grant an extension of time. From the submissions of each side, I have been unable to reach a definite view as to the underlying merit or otherwise of the substantive application. This factor has therefore been neutral in my consideration.
Fairness between the Applicant and other persons in a like position
[21] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.
Conclusion
[22] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”
[23] The onus is on Ms Will to convince me that I should extend time. I am not satisfied, on balance, that she has met that onus.
[24] The circumstances of the delay in filing the second application on 21 July 2009 are somewhat unusual. No substantive reason is advanced by Ms Will to explain why a second application was initiated over a month after the first one was withdrawn beyond the allegation that she was advised some time prior to that date that she might have a claim pursuant to s.659 of the Act. It would have been open to Ms Will to seek a stay of proceedings relating to her first application if her medical condition demanded it. Instead, she discontinued the application.
[25] The delaying in filing the second application is significant and all in all, I find that this is not a case where I should grant an extension of time.
[26] The application to extend time is refused and therefore the substantive application must also be dismissed.
[27] An order reflecting this decision is in PR989805.
COMMISSIONER
1 (1995) 67 IR 298 at p299.
2 [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)
3 Ibid at paragraph 23.
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