Samantha Halford v Parfitt Family Trust T/A Lush Us Hair and Body

[2012] FWA 7892

[2012] FWA 7892

FAIR WORK AUSTRALIA

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Samantha Halford
v
Parfitt Family Trust T/A Lush Us Hair & Body
(U2012/11190)

COMMISSIONER CLOGHAN PERTH, 12 SEPTEMBER 2012

Unfair dismissal.

[1] On 9 July 2012, Miss Samantha Cherry Halford (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from her former employer, Parfitt Family Trust T/A Lush Us Hair & Body (“the Employer”).

[2] Miss Halford’s employment was terminated with immediate effect on 16 June 2012.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[4] The application was unable to be resolved at conciliation and was referred to me for arbitration on 26 July 2012.

[5] For the Tribunal to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 14 days after the dismissal took effect (see paragraph 394(2) of the FW Act).

[6] Miss Halford has not made the application within 14 days after the dismissal took effect. However, the Tribunal can allow for a further period for the application to be made (that is, 9 July 2012), if it 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.

[7] On 27 July 2012, I invited Miss Halford, by way of procedural directions, to make a written submission to the Tribunal in accordance with the criteria in paragraph [6] above.

[8] Miss Halford did not make a written submission to the Tribunal nor did she contact the Tribunal as to why she was unable to make any submissions. Miss Halford’s submission was due on 10 August 2012.

[9] Having considered the information provided by the Applicant in her application and the absence of any submission as to why exceptional circumstances existed to lodge the application beyond the 14 days statutory timeline, I am not satisfied that it is appropriate to allow the application to be filed on 9 July 2012. Accordingly, the Tribunal has no jurisdiction to hear and determine the application. Consequently, the application will be dismissed. An Order dismissing this application will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

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