Rosa Resta v Myer Stores Ltd trading as Myer Northland

[2013] FWC 1563

[2013] FWC 1563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosa Resta
v
Myer Stores Ltd trading as Myer Northland
(U2012/14128)

DEPUTY PRESIDENT SMITH MELBOURNE, 15 MARCH 2013

Application for unfair dismissal remedy - extension of time.

[1] Ms Rosa Resta has made an application to Fair Work Australia (now the Commission) for relief in relation to her termination of employment by Myer Stores Ltd trading as Myer Northland (Myer).

[2] Ms Resta argues that she was dismissed on 24 September 2012 and lodged her application on 12 October 2012.

[3] Myer lodged an objection to jurisdiction in the Commission on two grounds. Firstly it is argued that there was not a termination at the initiative of the employer and secondly that the application was out of time.

[4] Regrettably it became clear during the proceeding that both parties had been advised that the proceedings were to deal only with the extension of time issue. As such both parties had only prepared for that argument.

[5] Therefore it is to that argument that I now turn.

[6] Ms Resta argues that the Commission should grant an extension of time for the following reasons:

• she signed the application on 8 October which was 14 days after the termination of employment;



• she had been employed by Myer for 21 years and that she would not have “resigned” unless she was forced to do so;



• she had no other employment arranged;



• she was advised by an employee of Fair Work Australia that she had two days after the cut off date to lodge the application; and



• she experienced trouble faxing the application.

[7] Myer argued that the Commission should not grant an extension of time. Myer drew attention to the resignation of Ms Resta and the fact that the resignation occurred following her admitting to breaches of company policy.

[8] It was submitted by Myer that Ms Resta did not pursue her application as she failed to attend conciliation conferences.

[9] In considering whether or not to grant an extension of time the Commission considers the provisions of s.394(2) and (3) of the Fair Work Act 2009 (the Act). These are as follows:

[10] Section 394(2) of the Act provides:

(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).

[11] Section 394(3) provides:

(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.

[12] I now turn to the provisions of s.394(3) of the Act.

Reason for the delay—s.394(3)(a)

[13] The reasons for delay given by Ms Resta was that an officer of the Fair Work Commission told her that she had two days after the cut-off time to lodge and that she experienced trouble in faxing the application. Whilst I have strong reasons to believe that an employee of the Fair Work Commission would not provide the advice that an applicant had two days following the cut-off date, the contact with the Commission is often confused with other bodies. Her evidence was none-the-less clear and it would appear a strange story to construct and therefore not easily discounted.

Awareness of the dismissal—s.394(3)(b)

[14] In this connection there was no delay in Ms Resta becoming aware of the cessation of employment. Indeed it was her action, although she argues forced, which lead to the cessation of employment.

Any action taken—s.394(3)(c)

[15] Ms Resta lodged, although out of time, within a close time-frame to the statutory requirement.

Prejudice to the employer—s.394(3)(d)

[16] I do not discern any prejudice to the employer as the circumstances it wishes to argue are clear and not prejudiced by the effluxion of time.

Merits of the application—s.394(3)(e)

[17] Given the other issue to be determined, namely whether or not it was termination at the initiative of the employer, I make no comment on this aspect.

Fairness as between the person and other persons in a similar position—s.394(3)(f)

[18] Consideration of this issue touches more directly on whether or not exceptional circumstances exist.

Conclusion

[19] What is the position that Ms Resta finds herself?

• she has 21 years of service;



• there has only been one complaint about her work and she submits that arose from a customer complaint;



• whilst the circumstances point to a resignation she asserts that she was forced to resign and that she did not do so voluntarily as she had no job to go to; and



• she asserts that a person from Fair Work Australia advised her that she had two days after the cut-off time. I am concerned that this is either a misunderstanding or she was not actually speaking to an employee of Fair Work Australia.

[20] Against this background I find that there are exceptional circumstances and I extend time for lodgement up to the time of lodgement. An order to that effect is found in PR534806.

DEPUTY PRESIDENT

Appearances:

R. Resta the Applicant.

D. Cavedon appearing for Myer Stores Ltd trading as Myer Northland.

Hearing details:

2013.

Melbourne:

February 1.

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