Samantha Jones v JHY (WA) Pty Ltd T/A JHY Realty

[2014] FWC 2265

[2014] FWC 2265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Jones
v
JHY (WA) Pty Ltd T/A JHY Realty
(U2014/528)

COMMISSIONER WILLIAMS PERTH, 8 APRIL 2014

Termination of employment - extension of time.

[1] Ms Samantha Jones, the applicant in this matter has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is JHY Pty Ltd T/A JHY Realty.

[2] The applicant was dismissed on 6 December 2013 and this application was made on 21 February 2014.

[3] The application has been lodged considerably more than 21 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) of the Act allows the Commission to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 of the Act below:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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] As directed by the Commission the applicant has provided a written submission  in support of her application that she be allowed a further period within which to make this application, beyond the 21 days the legislation requires.

Are there are exceptional circumstances?

The reason for the delay

[6] The applicant submits that she was unaware of the option to make an application for an unfair dismissal remedy to the Commission and had she been aware she would have taken action sooner.

[7] It is well established that simply being unaware of one’s legal rights is not an acceptable reason for delay in making an application.

[8] Following her dismissal she says she was in tremendous distress emotionally and was physically ill and bed ridden and felt too incapacitated to take any action.

[9] The onus is on the applicant to satisfy the Commission that there are exceptional circumstances warranting the Commission exercising its discretion to allow additional time to make an application. The applicant has not provided any medical evidence in support of her submissions as to her state of health between 27 December 2013 and when this application was made on 21 February 2014. I cannot be satisfied that for the whole of this period the applicant was so incapacitated that she was unable to make this application.

[10] The applicant submits that she had expected she would be contacted by her employer after her dismissal to discuss reemployment considering the dismissal was so bizarre.

[11] This expectation of the applicant is not an acceptable reason for the delay in making this application.

[12] The applicant points out that the dismissal took place over the Christmas and New Year break.

[13] The timing of the dismissal in itself is not acceptable reason for delay in making an application but in any event the applicant waited until approximately 7 weeks into the New Year before making this application.

[14] The respondent was non-contactable for a period of four weeks after the dismissal and that made her hesitant to act because she was hoping to be contacted by employer as explained above.

[15] This explanation does not seem to be consistent with the applicant’s other explanations for the delay such as the fact that she was unaware of the option to make the application. In any event her choice to wait in the hope the respondent would contact her was a personal choice and is not acceptable reason for all of the delay in this case in making the application.

Any action taken by the person to dispute the dismissal

[16] The applicant has not taken any other action to dispute the dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[17] 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

[18] The merits of the application are a neutral matter given the respondent has not filed a response to the substantive application and the Commission’s task at this preliminary stage is not to embark upon an assessment of those merits unless this is readily possible on information available.

Fairness as between the person and other persons in a similar position

[19] This is not a relevant factor in this case.

Conclusion

[20] The onus is on the applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days.

[21] I have considered the information provided and the submissions from the applicant which have addressed the relevant matters I am obliged to take into account. There is in this instance no acceptable reason for the delay in making this application as I have explained above and I am not satisfied that any of the other matters to be considered demonstrate that there were in this case exceptional circumstances.

[22] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

[23] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 20 March 2014

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