Roselina Kriuze v Eastwood Sweeney Pty Ltd
[2012] FWA 4429
•28 MAY 2012
[2012] FWA 4429 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roselina Kriuze
v
Eastwood Sweeney Pty Ltd
(U2012/3967)
COMMISSIONER WILLIAMS | PERTH, 28 MAY 2012 |
Termination of employment - extension of time.
[1] Ms Rosalina Kruize (the Applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Eastwood Sweeney Pty Ltd T/A Eastwood Sweeney Law (the Respondent).
[2] The Applicant was dismissed on 20 December 2011 and notified of her dismissal the same day. The application was made on 11 January 2011.
[3] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.
[4] Section 394 (3) provides that Fair Work Australia may allow a further period for an application such as this to be made, but only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 below.
“s. 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.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
[5] Submissions have been provided by the parties regarding allowing a further period for this application to be made.
Are there exceptional circumstances?
The reason for the delay
[6] The Applicant submits that the reason for the delay was the error made by her legal representatives at that time as to the correct jurisdiction in which to make an unfair dismissal application.
[7] The Applicant has provided a statutory declaration regarding the relevant events and in addition an affidavit sworn by Elizabeth Jane Mitchell of Havilah Legal has been provided to the Respondent and the Tribunal.
[8] The evidence of the Applicant and Ms Mitchell is that in mid-December 2011 the Applicant met with Ms Mitchell regarding concern she had about her employment and an offer made to her by the Respondent for the position of Articled Clerk.
[9] Subsequently on 21 December 2011 the Applicant advised Havilah Legal that she had been terminated and met briefly with staff of that law firm to discuss any potential claims she may have against the Respondent.
[10] Ms Mitchell provided advice to the Applicant by email on 23 December 2011 that she may be entitled to lodge an unfair dismissal with the West Australian Industrial Relations Commission and that she had 28 days from the date of her dismissal to lodge such a claim. Apparently this email was not received by the Applicant.
[11] Ms Mitchell attempted to contact the Applicant on her mobile number but this was unsuccessful as the firm’s office staff had incorrectly recorded the Applicant’s phone number.
[12] On 5 January 2012 the Applicant contacted Ms Mitchell by phone and attempts were made to provide her with another copy of this email but this was unsuccessful. Ultimately the Applicant met Ms Mitchell the following day, 6 January 2012, at which time Ms Mitchell provided her with a copy of the advice contained in the previous email of 23 December 2011.
[13] The Applicant then advised Ms Mitchell and that she wanted to make an unfair dismissal claim.
[14] A colleague of Ms Mitchell who was acquainted with the Applicant subsequently spoke to the Applicant as to whether she should pursue her unfair dismissal claim.
[15] On 10 January 2012 the Applicant instructed Ms Mitchell to file an unfair dismissal claim. At that time Ms Mitchell confirmed the claim must be lodged by 17 January 2012, 28 days after the dismissal. Ms Mitchell’s evidence is that upon preparing the application for the unfair dismissal claim it became apparent to her that the Respondent was a Proprietary Limited company which was different from her previous understanding. She sought the advice then from Mr Trainer, an employment law consultant (the Applicant’s representative in this matter) who advised her that consequently the Fair Work Act 2009 would be applicable and the unfair dismissal claim must be lodged within 14 days of dismissal.
[16] Ms Mitchell then advised the Applicant to contact Mr Trainer and urgently seek his assistance which the Applicant did and this application was made with Fair Work Australia the following day.
[17] I accept the evidence of the Applicant and Ms Mitchell as to the above events which are not challenged by the Respondent.
[18] In summary the delay in making this application was because of the erroneous advice given by the Applicant’s legal representatives which was compounded by the delay in communicating that incorrect advice to the Applicant because of email failures. What is clear is that the Applicant at all times wanted to make an unfair dismissal application and actively pursued this.
[19] Considering the circumstances here the Applicant has demonstrated that there was an acceptable reason for all of the delay in making this application.
Any action taken by the person to dispute the dismissal
[20] After the termination the Applicant sought legal advice on her situation but has not otherwise taken action to dispute her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
[21] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.
The merits of the application
[22] The Applicant has provided significant detail as to the events leading up to her dismissal and has explained from her perspective why she believes what occurred was harsh, unjust or unreasonable. The Respondent however does not accept the Applicant’s factual assertions but has chosen not to provide any evidence concerning the merits of the substantive application at this stage.
[23] I certainly accept that if the facts of the matter were simply as the Applicant asserts then she has a strong case to argue that her dismissal was unfair. Having said that it is not the Tribunal’s function when considering an application to extend time to delve fully into the factual and legal matters with respect to the substantive application.
Fairness as between the person and other persons in a similar position
[24] This is not a relevant consideration in this matter.
Conclusion
[25] The onus is on the Applicant to persuade Fair Work Australia that a further period should be allowed for her to make this application beyond the statutory time limit of 14 days. I have considered the information provided and the submissions made by both parties on the relevant factors and I am satisfied that the reasons for delay amount to exceptional circumstances.
[26] Consequently I am persuaded that I should exercise the discretion available to allow a further period for this application to be made. An order to that effect will issue in conjunction with this decision.
[27] The matter will now be referred for a conciliation conference and the parties will be advised accordingly in due course.
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