Samantha Wigg v Linfox Armaguard Pty Ltd

[2014] FWC 9083

[2014] FWC 9083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Wigg
v
Linfox Armaguard Pty Ltd
(U2014/12827)

COMMISSIONER WILLIAMS PERTH, 17 DECEMBER 2014

Termination of employment - extension of time.

[1] Ms Samantha Wigg (Ms Wigg or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Linfox Armaguard Pty Ltd (Linfox or the respondent).

[2] Ms Wigg was dismissed on 2 July 2010 and was notified of this on that day. This application was made by Ms Wigg on 26 September 2014.

[3] The application has been lodged 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 Fair Work Commission to permit 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 s. 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] Submissions have been provided by Ms Wigg regarding allowing a further period for this application to be made. Linfox object to the application on the ground it is out of time and argue there are not exceptional circumstances for the Commission to extend time to make the application.

Are there exceptional circumstances?

The reason for the delay

[6] Ms Wigg states that at the time of her termination she contacted the Transport Workers’ Union of Australia (the TWU) lawyer and she was told that she did not really have much hope.

[7] Ms Wigg states that she recently found an article that refers to a Fair Work Australia decision, Symes v Linfox Armaguard Pty Ltd [[2012] FWA 4789], where the employee was dismissed for swearing at his boss but following a hearing was ordered to be reinstated.

[8] The respondent advises that Ms Wigg made a prior unfair dismissal application, U2010/10263, which was lodged on 6 July 2010 and which following conciliation was discontinued. A form F50−Notice of Discontinuance to this effect, wholly discontinuing this matter, was lodged by the TWU as Ms Wigg’s representative on 29 September 2010.

[9] The respondent’s information regarding the prior unfair dismissal application is confirmed by the Commission’s records

[10] Turning then to consider the reason for the delay in making this application, Ms Wigg’s reason for making this application (the second unfair dismissal application she has made regarding her dismissal in July 2010) is because only recently did she become aware of a decision made in 2012 which she interprets as indicating there may be some hope for her to succeed in an unfair dismissal case contrary to the advice she received from the TWU in 2010.

[11] Arguably these reasons are not an explanation for the delay in making this application but rather the reason for making a second application after having decided to discontinue her first application in September 2010.

[12] In any event all that has occurred here is that Ms Wigg has read something which has caused her to change her mind about whether there was any hope of her succeeding with an unfair dismissal claim.

[13] In my view an applicant simply changing their mind as to whether they wish to pursue an unfair dismissal application, whether because of advice or for some other reason, is not an acceptable explanation for a delay in making an application and specifically in this case is not an acceptable explanation for a delay of over four years.

Whether the person first became aware of the dismissal after it had taken effect

[14] Ms Wigg was aware of her dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[15] Ms Wigg previously disputed her dismissal by making the prior unfair dismissal remedy application mentioned above.

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

[16] A delay of four years is likely to involve some real prejudice to the employer given the likely decay of memories of those involved in the events leading up to the dismissal.

The merits of the application

[17] There is limited information regarding the merits of Ms Wigg’s application. From what information is available there is some dispute about the actual events on which the dismissal was based and some potential arguments from Ms Wigg that her conduct should be excused because of her health and the medication she was using at the time.

[18] As is often the case in an extension of time application in this instance the merits of Ms Wigg’s substantive application are a neutral consideration.

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

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

Conclusion

[20] The onus is on Ms Wigg 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. In this case there is no acceptable reason for the delay of over four years in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[22] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[23] An order to that effect will now be issued.

COMMISSIONER

Final written submissions:

Applicant, 21 October 2014

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