Sharon Harmer v Direct Freight (Aust) Pty Ltd

[2012] FWA 3653

[2012] FWA 3653

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal

Sharon Harmer
v
Direct Freight (Aust) Pty Ltd
(C2012/2246)

COMMISSIONER MCKENNA SYDNEY, 30 APRIL 2012

Application to deal with contraventions involving dismissal - late application - application dismissed.

[1] Sharon Harmer (“the applicant”) has made this application pursuant to s.365 of the Fair Work Act 2009 (“the Act”) to deal with alleged contraventions involving dismissal by Direct Freight (Aust) Pty Ltd (“the respondent”). The applicant was formerly employed by the respondent from May 2011 to October 2011 as a casual delivery driver in the respondent’s freight business. By way of brief background, the applicant sustained an injury that was not work-related. As a result, the applicant could not work for the respondent for a period of time. The applicant contended she was dismissed in connection with the injury, whereas the respondent contended there was no termination of employment at its initiative. Prior to making this application under s.365 of the Act, the applicant lodged, but later withdrew, an application for an unfair dismissal remedy made pursuant to s.394 of the Act.

[2] A conference by telephone involving the Albury/Wodonga-based parties was convened by me on 14 February 2012. Further to matters arising from the conference, the application was stood-over pending the filing of a notice of discontinuance by the applicant. Later that same day, however, the applicant advised in email correspondence that, on having obtained legal advice, she wished to proceed further “to the courts” in relation to the alleged contraventions. As the applicant’s employment terminated on 5 October 2011 and the application was lodged on 13 January 2012, the application has been made out of time given the standard time stipulation of 60 days in s.366 of the Act. As such, directions were given concerning consideration of the late lodgement of the application in connection with the applicant’s wish to proceed further with the application. The directions were subsequently amended by consent and the parties also agreed that the matter be determined on the basis of their written materials.

Applicant’s case

[3] In a brief, initial submission filed pursuant to the directions, the applicant outlined the following matters. The applicant submitted she had made attempts to lodge an application together with an application to waive the filing fee. The applicant submitted that the “whole reason” for the lateness was attributable to sending forms by mail and waiting for responses, with the result that “time did get away”. The applicant requested that these matters be taken into account as she now wishes to proceed to court. In a subsequent submission-in-reply to the respondent’s materials, the applicant submitted she did not know anything about the law and was only just learning how to use a computer. The applicant submitted she did not know she had to establish reasons for the acceptance of the late application. The applicant submitted, however, that she had a letter from the respondent indicating there was no work available to her due to her injury. The applicant also outlined a number of matters going to the circumstances surrounding the termination of employment, including matters relevant to a medical certificate. The applicant’s submissions continued by outlining the amount of money she hoped to obtain from the respondent. The applicant submitted she has not been able to find alternative employment in the transport industry in the Albury/Wodondga area where she lives. The applicant’s submissions also outlined the personal and financial difficulties she has experienced as a result of her continuing unemployment.

Respondent’s case

[4] The respondent submitted the application should not be accepted out of time and that, in any event, the termination of employment was the result of an abandonment of employment by the applicant rather than a dismissal. As to the late application, the respondent submitted there were no exceptional circumstances to warrant a further period being granted to the applicant to make her application. The respondent’s submissions addressed matters in the following way. The respondent submitted the application was out of time and that the applicant’s initial submission appeared to offer two reasons for the delay. Those matters went to delays related to receiving and then processing forms, including fee waiver forms, but no evidence as to administrative issues had been offered to support the delay. The respondent further submitted the applicant had initially lodged an earlier application for an unfair dismissal remedy under s.394 of the Act after the alleged dismissal, but decided not to proceed with that application. As to that, an objection had been taken by the respondent to the initial unfair dismissal application and the applicant was aware of the nature of the respondent’s objections. The applicant, the respondent submitted, had time to lodge the subsequent application under s.365 of the Act within the statutory timeframe after she had decided not to proceed with the s.394 application, but did not do so. The respondent submitted that an employee who is aggrieved at being dismissed ordinarily should be expected to seek information as to remedies in a timely fashion. Delay on account of ignorance of an appropriate remedy and the relevant time limit attached to pursuing that course should not be considered to amount to exceptional circumstances.

[5] The respondent’s submissions noted the alleged dismissal had given rise to two separate applications. In this respect, the respondent submitted the applicant did not proceed with the initial unfair dismissal application as she had not been employed for six months. The respondent noted the applicant had also submitted that she proposed to discontinue the subsequent s.365 application. The respondent thought all matters had been resolved until the applicant subsequently advised she had obtained free legal advice and wished to take the matter further. The respondent reiterated its submissions the applicant should have sought information as to remedies in a timely fashion.

[6] The respondent submitted it had been subject to prejudice in relation to the fact the applicant initially had lodged an unfair dismissal application under s.394 of the Act, although that application had no jurisdictional basis. Following the conference in relation to the subsequent s.365 application, the respondent considered the s.365 application had been resolved and would be discontinued. The respondent submitted it has been subject to many additional costs arising from the actions of the applicant in first pursuing an unfair dismissal application which had no jurisdictional basis and then indicating that she wished to proceed with an application under s.365 which presumptively had been resolved. Both applications have involved costs to the respondent in terms of employee time to investigate the claims, to prepare documentation in response to applications and to attend telephone conferences.

[7] The respondent submitted there had been no dismissal at the initiative of the respondent and that, on all issues, the application lacks merit. In this respect, the respondent referred to matters raised in submissions filed on 3 April 2012.

[8] In conclusion, the respondent submitted it was unclear whether the applicant was aware of the time limit under s.365 of the Act, but even if she was not aware of the time limit then ignorance of the time period would not be considered to be exceptional. In the alternative, if the applicant was aware of the time limit and was late in making the application due to administrative issues, no evidence had been offered in support of this reason; and, further, this reason does not constitute an exceptional circumstance. On the matters relied on by the applicant, there was no combination of factors which produce a situation that is out of the ordinary, unusual, special or uncommon.

Consideration

[9] This application was lodged about 100 days after the date of the termination of employment, whereas s.366(1) provides that an application under s.365 of the Act must be made within 60 days after the dismissal took effect. As to late applications, s.366(2) of the Act provides that Fair Work Australia may allow a further period to the applicant for making the application if satisfied there are exceptional circumstances, taking into account: the reason for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a like position. I turn now to those matters.

[10] Reason for the delay: The applicant submitted the “whole reason” for the delay was attributable to mailing forms in connection with the application (together with her lack of computer skills), with the result that “time did get away”. The file record discloses the application was received by Fair Work Australia on 13 January 2012. Matters related to the application for waiving the filing fee were the subject of correspondence after the late lodgement on 13 January 2012, with advice as to the waiving of the filing fee being communicated to the applicant in correspondence from Fair Work Australia dated 31 January 2012. Thus, the application was late when lodged; the communications about the filing fee followed the late lodgement.

[11] Action taken to dispute the dismissal: The applicant initially made an unfair dismissal application pursuant to s.394 of the Act. This may be considered to constitute action to dispute the dismissal (if, contrary to the respondent’s submissions, there was a dismissal) prior to making the application under s.365 of the Act.

[12] Prejudice to the employer: The respondent submitted it had been prejudiced by the costs and inconvenience in relation to responding to an initial s.394 unfair dismissal application which was made without a jurisdictional basis and, thereafter, by having to deal with an application under s.365 which, following conference proceedings, the applicant had submitted she intended to discontinue. Without detailing the matters canvassed in private conference, the outcome of the proceedings on 14 February 2012 was that the applicant was going to discontinue the application. The applicant then took further legal advice and determined instead to seek to proceed with an application which she had indicated would be discontinued. The respondent was entitled to rely on the submissions of the applicant as to the result of the conference, but has been put to the exigencies associated with the applicant subsequently determining to press for the issuing of a certificate under s.369 of the Act so as to proceed further with the application in circumstances where the application was substantially out of time.

[13] The merits of the application: The respondent relied on submissions as to merit which had been filed on 3 April 2012, in contending there had been no employer-initiated dismissal. Given that the matters going to the nature of the termination of employment were not developed in evidence by either party and were the subject only of competing submissions, it is difficult to properly assess the criterion in s.366(2)(d) of the Act.

[14] Fairness as between the person and other persons in a like position: Neither party raised any matter going to fairness as between the applicant and other persons in a like position.

Conclusion

[15] On a consideration of the matters relied on by the parties and the criteria specified in s.366(2) of the Act, I have not been satisfied there are exceptional circumstances such as to allow additional time for the making of this application. The principal reason given by the applicant was delay brought about by mailing documentation; but, in this respect, it may be noted the application was not lodged until about 100 days after the date of the termination of employment. In the circumstances, the application is dismissed and, as a corollary, the certificate under s.369 of the Act will not be issued.

[16] An order dismissing the application has been issued in conjunction with this decision. The proceedings are concluded.

COMMISSIONER

Appearances:

S. Harmer - applicant, in person.

K. Todd, solicitor - for Direct Freight (Aust) Pty Ltd.

Hearing details:

Written submissions 6 March, 3 April and 11 April 2012.

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