Sandra Green v Bunnings Warehouse

[2014] FWC 2851

[2014] FWC 2851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Green
v
Bunnings Warehouse
(U2014/4919)

COMMISSIONER WILLIAMS PERTH, 1 MAY 2014

Termination of employment.

[1] Ms Sandra Green (the Applicant), has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent is Bunnings Group Limited (the Respondent).

[2] Ms Green was dismissed on 23 December 2014. The application was made on 24 February 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) allows the Fair Work Commission (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 s.394 below.

“s. 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 21 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.”

[5] Submissions have been provided by Ms Green regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] In her application Ms Green explains the reason the application was not made within 21 days of her being dismissed was that she had been ringing the union but they would not help her so she then rang some lawyers but was not able to afford their assistance. Ms Green says she then rang Legal Aid but was told they could not help her and no other lawyers would assist her.

[7] Someone then gave her the number of the Commission. She did not know about the Commission until 13 February 2014.

[8] Ms Green in further submissions explained that everyone was shut over the Christmas holidays until about 6 January 2014.

[9] Considering Ms Green's explanation for the delay in making this application it is well-established in previous decisions of this Commission that the fact an employee is unaware they are able to make an application for unfair dismissal or is unaware there is a 21 day time limit within which to make that application is not an acceptable reason for the delay in making their application. The law generally holds that being unaware of our legal rights or obligations is not an excuse.

[10] The challenges Ms Green experienced in getting any assistance from a union or a legal representative is certainly not an unusual experience for an employee to have after being dismissed from their employment.

[11] Further the fact that it was Christmas is not of itself an acceptable explanation for any part of the delay in this matter.

[12] Ms Green has explained she was aware of this Commission's existence and a contact phone number on 13 February 2014 however her application was still not lodged until 11 days later on 24 February 2014 and there is no explanation for this further delay.

[13] Considering the explanations for the delay in making this application I am not satisfied that there is any acceptable reason for the delay in this instance.

Any action taken by the person to dispute the dismissal

[14] The Applicant has not otherwise sought to dispute her dismissal.

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

[15] 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

[16] There is limited information regarding the merits of Ms Green's application although I note that she admits she did resign and it is not readily apparent that she had no choice other than to resign although it may be the case that the Respondent offered her that option or encouraged her to resign. If at law Ms Green was not dismissed she will inevitably fail in her application. Although there are real doubts about the merit of Ms Green's case given the limited information available to the Commission at this point, my conclusion is that the question of merit is a neutral factor for the determination of the extension of time question.

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

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

Conclusion

[18] 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. I have considered the information provided and the submissions. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[19] 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 Fair Work Commission and must be dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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