Samantha Cole v Key Resources Pty Ltd T/A the Settlement Hotel Cranbourne

[2014] FWC 3278

[2014] FWC 3278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Samantha Cole
v
Key Resources Pty Ltd T/A The Settlement Hotel Cranbourne
(C2014/3394)

COMMISSIONER BLAIR MELBOURNE, 16 MAY 2014

Application to deal with contraventions involving dismissal.

[1] This matter arises out of an application made under s.365 of the Fair Work Act 2009 (the Act) by Ms Samantha Cole (the Applicant) against Key Resources Pty Ltd t/as The Settlement Hotel Cranbourne (the Respondent).

[2] The matter was first dealt with by the Fair Work Commission (the Commission) by way of conference on 2 April 2014, at which time an objection in relation to extension of time for lodging the originating application was raised. Directions were issued and the matter was set down for hearing in relation to an extension of time on 12 May 2014.

[3] The decision, handed down in transcript (now edited), is as follows:

[4] Section 366 of the Act sets out the requirements for determining whether or not the Commission should grant an extension of time beyond the required 21 days in which an application can be made.

[5] Section 336 of the Act states:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[6] In this particular matter the Applicant Cole commenced employment either on 14 or 16May 2013. The Applicant says the 16th,the Respondent says the 14th. The date of notification of dismissal, by way of redundancy, was 7 February 2014 with one week’s notice given that the Applicant had less than 12 months’ service. This meant that the effective date of termination was the 14 February 2014, although the applicant assumed it was going to be at the end of her next shift which ended on 16 February 2014. It is conceded that the effective date is 14 February 2014.

[7] The application was lodged on 10th March 2014 and, given the time frame of the 21 days which would have taken effect from 14 February 2014, the application is three days out of time.

[8] The Applicant spoke to her legal representative on 16 February 2014 and was advised on that date, and acknowledges that she was advised, that there was a 21 day time frame in which an application had to be made to the Commission. The Applicant unfortunately miscarried on 17 February 2014 and also suffered a seizure later on the same day.

[9] The Applicant commenced employment at a trout farm on or about 24 or 25 February 2014, and is currently still employed on a casual basis at that employer. She works between 20 to 35 or 38 hours per week, at a rate somewhere between $20.50 and $22.50 per hour, which is the figure provided by the Respondent.

[10] The Applicant has advised that she has applied for a number of jobs after 7 February 2014.

[11] The requirements for an extension of time are set out at s.399(2) of the Act.

[12] In relation to subsection (2)(a), some of the reasons provided where that the Applicant was in shock, was distressed and in a confused state and as I indicated earlier, had suffered a miscarriage and a seizure.

[13] The issue of shock, distress and in a confused state has been dealt with by previous members of the Commission and by full benches. In the Commission’s view those reasons do not constitute exceptional circumstances.

[14] In relation to subsection (2)(b), it is clear that the Applicant spoke to her legal representative on 16February 2014 and it was abundantly clear to the Applicant that there was a 21 day time frame.

[15] In relation to subsection (2)(c) the Commission is satisfied that there would be no prejudice to the employer if the Commission were to grant the extension of time.

[16] In relation to subsection (2)(d), the Commission indicated earlier in the proceedings that it would not be in a position to make any judgement on the merits of the application given the complexity of the arguments raised by the Applicant and the response from the Respondent.

[17] Finally, in relation to subsection (2)(e) there are people that have made applications to the Commission that have been one day out of time but it has been made abundantly clear that there is a 21 day time frame and unless there are exceptional circumstances that time frame should be adhered to.

[18] The Commission is satisfied that there are no exceptional circumstances despite the fact that the Applicant did suffer a miscarriage and also a seizure on the same day. However, the Applicant was capable and coherent enough to commence employment on 25 February 2014 and continues to remain in employment. The Applicant also received advice on 16 February that there was a 21 day time frame. The Applicant says she attended for work at her employment in a state where she was under medication and so forth. However, the mere fact that she was able to attend work at her new employment and perform her duties adequately, otherwise she would not have been required to attend any further, tells the Commission that she was capable of making a decision and giving instructions to her legal representative that an application should be made prior to 10 March 2014.

[19] Therefore the Commission is not satisfied that it should exercise its discretionary powers and grant an extension of time beyond the 21 day time limit.

[20] Accordingly the application is dismissed.

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