Silvia Masero v Elbio Family Trust T/A Elbio All About Sweets

[2014] FWC 4547

[2014] FWC 4547

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Silvia Masero
v
Elbio Family Trust T/A Elbio All About Sweets
(U2014/1002)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 9 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 7 July 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 28 March 2014 Ms Masero lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with Elbio All About Sweets T/A Elbio Patisserie & Cafe.

[3] In her application, Ms Masero advised that her dismissal took effect on 6 March 2014. She advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept her application out of time.

“Dear Sir or Madam, Today is 21 days, If I am a little late on the day is because I have just finished shifting house. I haven’t had sufficient time to pack my house as I was working 63 hour per week. I also help to look after my sick sister who has a terminal illness called Sclero Derma. I thank you for your consideration and hope you accept my application.” 1

[4] The application was referred to me for consideration on 16 June 2014. On 18 June 2014 my Associate advised the parties that the extension of time issue would be considered through a telephone conference on 7 July 2014. The parties were provided with substantial background information relative to the application and extension of time issue. Ms Masero was required to provide a witness statement and a copy of any document relied upon, by 30 June 2014.

[5] The Employer’s Response (Form F3) to the application objected to an extension of time before the application.

[6] Ms Masero provided additional material to the Fair Work Commission (FWC) on 4 July 2014.

[7] A sound file record of the 4 July 2014 conference was kept. As there was no dispute that the respondent is properly referred to as Elbio Family Trust T/A Elbio All About Sweets (Elbio), I have applied the discretion in s.586 of the FW Act to amend the application accordingly. Ms Masero participated in this conference. Elbio was represented by Mr Perez.

[8] My decision on the extension of time issue was made on all of the material before me.

[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[10] Section 394 states:

“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.”

[11] In terms of s.394(2), the application was made one day outside of the specified 21 day time limit. It can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Masero's circumstances can be regarded as exceptional for the purposes of this subsection.

[12] The information Ms Masero has provided does not adequately explain why the application could not have been lodged within time. Ms Masero confirmed that, following the termination of her employment she was very tired and needed to move house. She advised that after resting for a week she then commenced to pack and move which resulted in the late lodgement of the application. Whilst she advised that she regularly spent time caring for her ill sister she confirmed that her actions in this respect did not explain the delay. I do not consider that these factors adequately explain the delay in lodging the application.

[13] Ms Masero's application confirms that she was made aware of the termination of employment decision on 6 March 2014 which she confirms was the date that termination of employment took effect.

[14] I am not satisfied that Ms Masero challenged the termination of her employment other than through this application.

[15] I do not consider that the granting of an extension of time would prejudice the respondent in this matter but of itself, that does not form a basis for an extension of time.

[16] The information before me does not enable a conclusion about the merits of the application so that I have regarded this as a neutral factor relative to the extension of time issue.

[17] Considerations of fairness relative to persons in similar circumstances to Ms Masero's do not support an extension of time.

Conclusion

[18] For the reasons I have set out above, Ms Masero's circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR552872) reflecting this decision will be issued.

[19] Finally, I note that Elbio has conceded that all payments due to Ms Masero relative to her employment have not yet been made. Ms Masero may seek to recover entitlements associated with her employment through a separate action. Accordingly, I repeat the clear recommendation I have provided to Elbio to the effect that any payments due to Ms Masero should be made as a matter of urgency.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

S Maseo on her own behalf.

E Perez representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 7.

 1   Form F2, para 1.4

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