Susan Pamela Stewart v Modern Storage Corporation
[2009] FWA 1375
•27 NOVEMBER 2009
[2009] FWA 1375 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Modern Storage Corporation
(U2009/12451)
COMMISSIONER RAFFAELLI | SYDNEY, 27 NOVEMBER 2009 |
Termination of employment – extension of time.
[1] Section 643(14) of the Workplace Relations Act 1996 (the Act) provides that an application under section 643 must be lodged within 21 days after the day on which termination took effect. It also says:
“OR within such period as the Commission allows on an application made during or after those 21 days.”
[2] Here, Ms Susan Pamela Stewart (the Applicant) did not lodge the application within 21 days of her termination by Modern Storage Corporation (the Respondent) on 30 June 2009. In fact the lodgement did not occur until 28 September 2009. The Applicant has requested that the time be extended.
[3] Section 647 of the Act allows extension of time applications to be dealt with without a hearing taking place.
[4] I decided to deal with the extension of time application without a hearing and on 15 October 2009 I wrote to both parties inviting them to provide any further information or submissions (to that already provided) as to why the extension of time should or should not be granted.
[5] The onus in establishing that such time should be extended lies on the applicant. It is the applicant’s matter and it is the applicant that has failed to act in the manner prescribed in the Act.
[6] Within the relevant part of the Act a note appears referring to principles enunciated in Brodie Hanns v MTV Publishing [1995 67 IR 298.]
[7] I take due regard to those principles. Those principles are as follows:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[8] I now turn to those principles and apply them to the information and submissions that have been provided to the Commission.
Acceptable explanation for the delay
[9] The Applicant alleges that following her termination she had lodged a complaint with the Fair Work Ombudsman on 18 July 2009 concerning an alleged failure by the Respondent to give the appropriate notice of termination or payment in lieu. The Fair Work Ombudsman replied on 17 September 2009 and advised her to approach Fair Work Australia. She contacted Fair Work Australia on 25 September 2009 and lodged her application on 28 September 2009. The Respondent made no comments concerning this. I find that there is an acceptable explanation for the delay.
Action taken by employee to contest the termination
[10] According to the Applicant she took steps to pursue the alleged failure to provide notice or payment in lieu. I find that the Applicant has taken action to contest her termination (or a material consequence of that termination) other than filing this application.
Prejudice to respondent
[11] The Respondent did not specifically address this aspect but did refer to financial hardship generally being experienced by it.
Merits of the application
[12] On the basis of the material before me it would seem that the Applicant has a strong prima facie case that she has not received her statutory entitlement.
Fairness as between the applicant and other persons in a like position.
[13] This is not a relevant consideration in the current circumstances.
Conclusion
[12] Having duly considered all the matters put to me by both parties in light of the principle enunciated in the Brodie-Hanns decision, I am prepared to exercise my discretion so as to allow the filing of the application on the day it was filed.
[14] The matter will now be listed for conciliation.
An Order reflecting this decision is in [PR991271]
COMMISSIONER
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