Sonia Karia v The Factory (Australia) Pty Ltd T/A the Factory

[2018] FWC 6879

[2018] FWC 6879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sonia Karia

v

The Factory (Australia) Pty Ltd T/A The Factory

(C2018/5532)

Commissioner Williams PERTH, 29 NOVEMBER 2018

Application to deal with contraventions involving dismissal - extension of time.

1. This matter concerns an application made by Ms Sonia Karia (Ms Karia or the Applicant) under section 365 of the Fair Work Act 2009 (the Act). The respondent is The Factory (Australia) Pty Ltd T/A The Factory (the Respondent).

1. Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“366      Time for application

(1)       An application under section 365 must be made:

(a)       within 21 days after the dismissal took effect; or

(b)       within such further period as the FWC allows under subsection (2).

(2)       The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)       the reason for the delay; and

(b)       any action taken by the person to dispute the dismissal; and

(c)       prejudice to the employer (including prejudice caused by the delay); and

(d)       the merits of the application; and

(e)       fairness as between the person and other persons in a like position.”

1. Ms Karia’s application states that she was dismissed on 7 September 2018. Her application was made on 3 October 2018. The application was made after the 21 day time limit had passed.

1. Consequently I wrote to Ms Karia explaining to her the requirements of section 366 of the Act and inviting her to provide any relevant evidence and submission to assist the Commission in determining whether there were exceptional circumstances in this case.

1. Ms Karia has provided written submissions and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

The reason for the delay

1. Ms Karia has explained that on 28 September 2018, 21 days after her dismissal, she lodged an unfair dismissal remedy application with the Commission (U2018/10073) pursuant to section 394 of the Act.

1. On 1 October 2018 she received correspondence from the Commission that indicated she may be ineligible to make an application for unfair dismissal remedy as it appears she has not been employed for the minimum employment period required under the Act.

1. Ms Karia says that having considered the Commission's correspondence she decided, on 3 October 2018, to discontinue her unfair dismissal remedy application and file this general protections application.

1. The Applicant’s submissions for the basis of the delay appears to rely on her not being aware of her ineligibility to make an unfair dismissal remedy application or the option to pursue the alternative general protections application until after having spoken to Commission staff.

1. It is understandable that the difference between an unfair dismissal remedy application and an application for the Commission to deal with contraventions involving dismissal may confuse a self-represented person seeking to dispute the dismissal.

1. To Ms Karia’s credit, after having received information from the Commission regarding the minimum employment period required under the Act to make an unfair dismissal remedy application she promptly discontinued that application and filed this general protections application.

1. However, it is the case that it is not out of the ordinary or uncommon for a person to be acting on their own without advice and to have to make a choice about the form of action they take against a former employer. There is ample information available through the Commission’s website and elsewhere that sets out the prerequisites of the respective forms of application that may be made. Care should be taken by any person contemplating making an application after the end of their employment about which type of application they chose to make. The fact that a person either is not aware of or does not fully understand the available material about alternative types of applications is not an exceptional circumstance.

1. Considering the Applicant’s reasons for the delay I am not satisfied that the reason amounts to acceptable reasons for the delay in making this application.

1. Separately the scheme of the Act itself and difficulties a self-represented person may have understanding the Act is not an exceptional circumstance.

Any action taken by the person to dispute the dismissal

1. The Applicant did lodge an unfair dismissal remedy application on 28 September 2018 but as explained above this was ultimately discontinued.

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

1. 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

1. There is limited information regarding the merits of Ms Karia’s application. The

Applicant submits the Respondent dismissed her because she was pregnant and was absent from work due to illness. The Respondent denies this was the case. In the circumstances the merits of the application is a neutral consideration when considering the extension of time question.

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

1. There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

1. 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 by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

1. I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and therefore must be dismissed.

1. An order [PR702154] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 5 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR702153>