Ruby Murphy v Mariola T/A Subway

[2012] FWA 10651

[2012] FWA 10651

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ruby Murphy
v
Mariola T/A Subway
(U2012/13114)

COMMISSIONER LEWIN MELBOURNE, 19 DECEMBER 2012

Unfair dismissal remedy - extension of time - non-attendance.

[1] On 10 September 2012 Ms Ruby Murphy made an application under s.394 of the Fair Work Act 2009 (the Act) for relief in relation to the termination of her employment with Mariola T/A Subway (the Respondent). Ms Murphy was employed by the Respondent from January 2012 until 24 August 2012.

[2] The Respondent filed an objection to the application on the basis that the application was lodged outside of the 14 day period so provided for by s. 394(2)(a) of the Act. The application was filed 17 days after the Applicant was dismissed. In order for the Tribunal to accept the application outside the time allowed the Tribunal would have to be satisfied that there are exceptional circumstances which would warrant doing so, having regard to certain matters set out in s.394(2) and s.394(3).

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

“Division 5—Procedural matters

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.”

[4] In order to consider whether or not the application should be accepted outside the time provided for, Ms Murphy was directed by the Tribunal to file and serve upon the respondent an outline of submissions, any witness statements and any other documentary material that she intended to rely upon in support of an extension of time for the lodgment of the application in the matter, by no later than noon on Friday, 2 November 2012. Ms Murphy did not file or serve any documents, as referred to in the directions issued by Fair Work Australia.

[5] In those directions, a notice of hearing was provided to Ms Murphy requiring that she, and the Respondent, attend a Hearing on 12 December 2012. Ms Murphy failed to attend the Tribunal in order to seek that her application be accepted outside the time provided for by section 394 of the Act. Therefore, and having regard to the fact that the need for an extension of time for the application was not addressed in the original application filed by Ms Murphy on 10 September, there is nothing before the Tribunal upon which I could give consideration to allowing a further period for Ms Murphy’s application to be made beyond the period of within 14 days after the dismissal from her employment took effect.

[6] Accordingly, I am not satisfied that there are exceptional circumstances which would warrant allowing a further period for Ms Murphy’s application to be made. I decide accordingly, as a result, Ms Murphy’s application will be dismissed.

[7] An order will issue accordingly.

COMMISSIONER

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