Robyn Faulkner v Laura Ashley Australia Pty Ltd

[2014] FWC 6597

[2014] FWC 6597 [Note: An appeal pursuant to s.604 (C2014/7469) was lodged against this decision - refer to Full Bench decision dated 15 January 2015 [[2015] FWCFB 352] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robyn Faulkner
v
Laura Ashley Australia Pty Ltd
(U2014/11112)

DEPUTY PRESIDENT MCCARTHY PERTH, 7 OCTOBER 2014

Application for relief from unfair dismissal - extension of time.

[1] On 22 July 2014, Ms Robyn Faulkner (the Applicant) lodged an Unfair Dismissal Application (the Application). The Applicant asserts that she was unfairly dismissed from her employment with the Laura Ashley Australia Pty Ltd (the Respondent). The Applicant states that her dismissal took effect on 21 June 2014. The Application was therefore lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).

[2] The reasons for the delay and why the Fair Work Commission (FWC) should accept the Application out of time were stated in the Application as follows:

“I am a little late as I have been awaiting the receival of Ms Delaram Harati’s Statutory Declaration form as I feel this document is a crucial element in relation to my submissions.”

[3] On 31 July 2014, I wrote to the Applicant requesting that she address the considerations I must take into account in determining whether exceptional circumstances exist to allow an extension of time.

[4] On 6 August 2014, the Applicant provided further submissions. The Applicant stated that:

“(a) The reason my application was delayed is solely due to the late receipt of the Statutory Declaration provided by Ms Delaram Harati. As I feel this document provides crucial evidence I felt the need to have it incorporated in the documentation I provided with my application. I enclose a copy of my email correspondences with Ms Harati in my endeavour to receive this documentation within the time frame allowed.

(b) I first became aware of the dismissal in an email I received from Laura Ashley (Australia) Pty Ltd. Please see enclosed a copy of this email. The day prior to receiving this advice I sent an email to Laura Ashley (Australia) Pty Ltd stating my dire concerns with information and documentation tabled at a meeting held two days prior.

(c) I sent a lengthy letter to Laura Ashley (Australia) Pty Ltd disputing my dismissal. A copy of this letter is also enclosed. To date I have not received a reply to this correspondence.

(d) I consider the delay to be minimal and cannot envisage any prejudice to the employer.

(e) I adamantly feel I have strong merits for this application to be considered. I am of the opinion that the evidence I have provided and the reluctance of Laura Ashley (Australia) Pty Ltd to provide a fair and equitable working environment supports my application.

(f) Documentation I have provided in evidence and support of my application reveals that there have been long standing issues with a number of staff over a considerable length of time.”

[5] On 25 August 2014, the Respondent provided submissions. In summary the Respondent stated that:

● The email exchanges between the Applicant and Ms Harati show a request from the Applicant on 2 July 2014 and a reply from Ms Harati on the same day. There was then no follow up by the Applicant until 14 July 2014, at which point the Applicant’s Application was already out of time.

● The Applicant acknowledges in both the Application and her submission that she was aware of the dismissal when it took effect. It is not contested that the Applicant was immediately aware of the dismissal on 17 June 2014.

● The Respondent does not dispute that the Applicant sent a lengthy letter disputing her dismissal. However, the Respondent submits that the FWC should have regard to the fact that the letter was sent by the Applicant to the Respondent on 16 July 2014, which was outside the statutory time frame for lodging an unfair dismissal application.

● With regards to the Applicant’s email of 16 June 2014 to the Respondent, the Respondent submits that the Applicant provided no particulars of her concerns in the email dated 16 June 2014 and provided no further information to the Respondent indicating her concerns until 16 July 2014 when the timeframe to lodge the Application for unfair dismissal had already lapsed.

Considerations

[6] The Applicant submits that the reason for the delay was that she was waiting for a statutory declaration from Ms Delaram Harati, which provided crucial evidence in support of the Applicant’s Application. I do not consider this weighs in favour of a finding of an exceptional circumstance. The Applicant could have lodged her Application with the FWC and provided the statutory declaration from Ms Harati at a later date. It is a regular occurrence in the FWC for Applicant’s to provide additional material in support of their application after the application has been lodged.

[7] It is not contested that the Applicant first became aware of her dismissal on 17 June 2014. I note that the Applicant has stated in her Application that her dismissal took effect on 21 June 2014. The Respondent’s letter of 17 June 2014 terminating the Applicant’s dismissal states that the Applicant’s dismissal was terminated with “immediate effect’. This element of my considerations does not weigh in favour of a finding of exceptional circumstances.

[8] On the day prior to being notified of her dismissal (16 June 2014) the Applicant sent an email to the Respondent advising that she had “very disturbing and serious matters to address” emanating from a meeting held two days prior. The Applicant further advised the Respondent that the matters caused her “considerable stress” and that she was in the “process of putting together future correspondence”. This element of my considerations weighs against a finding of exceptional circumstances.

[9] I do not consider the Respondent will suffer prejudice if the Application is allowed.

[10] There is limited information regarding the merits of the Applicant’s Application and without detailed submissions from the parties regarding the merit of the Application the question of merit must be given neutral weight.

[11] The fairness between the Applicant and other persons in a similar position weighs against a finding of exceptional circumstances.

[12] I find that exceptional circumstances do not exist. Therefore, I will not extend the time for the filing of the Application. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 6 August 2014.

Respondent, 25 August 2014.

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