Sharni Quinn v Westside Real Estate Investments Pty Ltd

[2019] FWC 1774

[2019] FWC 1774

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Sharni Quinn
v
Westside Real Estate Investments Pty Ltd
(C2018/6231)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 MARCH 2019

Application to deal with contraventions involving dismissal; extension of time; application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 12 March 2019.

[2] Ms Sharni Quinn made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) on 5 November 2018. The application alleges a dismissal by Westside Real Estate Investments Pty Ltd (employer) in contravention of the general protections provisions of the Act.

[3] Ms Quinn's application specified that the date on which the employment ended was 16 October 2018. In the material supporting that application it is contended that dismissal occurred on or about 18 October 2018. The employer disputes that there was a dismissal at all but contends that the employment ended on 12 October 2018.

[4] In a dismissal related general protections application it is unnecessary for me to determine whether or not there was a dismissal, that is, a termination of employment at the initiative of the employer. It is sufficient for me to be satisfied that the employment has ended and to identify the date on which the employment came to an end.

[5] The employer contends that on or about 12 October 2018 Ms Quinn attended the office with her mother at which time she cleared her desk and left the premises. It contends that by that act the employment ended.

[6] The employer has supplied a copy of a bank statement in which it is clear that Ms Quinn was paid a termination payment in the amount of $2,285.72 on 12 October 2018. The act of payment of a termination pay is consistent with the employer's contention that employment ended on 12 October 2018.

[7] Ms Quinn has been given ample opportunity to attend the Commission, to file submissions and to provide any further material on which she wished to rely, but for reasons that are unexplained she has failed or declined to do so.

[8] In the circumstances on the material available to me, I am satisfied that Ms Quinn’s employment ended on 12 October 2018.

[9] It is therefore necessary to consider whether there should be a grant of an extension of time in order to enable Ms Quinn to pursue her general protections dismissal related remedy claim.

[10] Section 366 of the Act requires that applications under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. I am satisfied that the application was made outside of the timeframe provided for in s.366(1)(a), and that is, I am satisfied that the termination of employment took effect on 12 October 2018, and the application was not lodged until 5 November 2018.

[11] Section 366(1)(b) of the Act provides that a further period may be allowed subject to the circumstances set out in s.366(2). Under that subsection the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account a range of matters.

[12] As I had earlier indicated, Ms Quinn has been given an opportunity to file submissions in response to the employer's contention that the application was made out of time, including to supply any evidence or other material on which she intended to rely addressing the circumstances set out in s.366(2) of the Act. Ms Quinn has not filed any material in response to those directions.

[13] Further attempts have been made by telephone, both at the time for compliance and subsequently, in order to ascertain whether Ms Quinn was intending to file further submissions or to further participate in these proceedings. Each of those attempts have been met with silence, including attempts by my Associate this morning to contact Ms Quinn.

[14] In those circumstances, there is no material on which I can be satisfied that there was a reason for the delay or that any step was taken by Ms Quinn beyond making this application to dispute the dismissal. The question of prejudice in the circumstances is a neutral consideration. I assume that the application is not without merit and I have no other material in relation to the question of fairness as between Ms Quinn and other persons in her position.

[15] Given the paucity of material and the lack of participation by Ms Quinn in these proceedings, I am not persuaded that there are exceptional circumstances to warrant consideration whether to exercise a discretion to allow a further period within which the application could be made.

[16] In those circumstances, having been satisfied that an extension of time is necessary, I determine that the application is out of time, that there are no exceptional circumstances taking into account the matters in s.366(2) of the Act and therefore I dismiss the application.

[17] An order has been separately issued in PR705971.

DEPUTY PRESIDENT

Appearances:

D Spiteri and M Nincevic for the Respondent.

Hearing details:

2019.

Melbourne:

March 12.

Printed by authority of the Commonwealth Government Printer

<PR705970>