Susan Tabone v Serco T/A Serco Immigration Services

[2015] FWC 5694

[2015] FWC 5694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Tabone
v
Serco T/A Serco Immigration Services
(U2015/9216)

COMMISSIONER RYAN MELBOURNE, 18 AUGUST 2015

Application for relief from unfair dismissal - jurisdiction - extension of time - granted.

[1] The Applicant has made an application for an unfair dismissal remedy. The application was filed outside the 21 day time limit set by s.394(2)(a) of the Act. The Applicant seeks an extension of time pursuant to s.394(2)(b) of the Act. Both the Applicant and the Representative have agreed to have the extension of time application determined by the Commission on the papers.

[2] The Applicants paid representative, Mr Close, has filed an Outline of Submissions in which he concedes that the reason for the late filing of the application in this matter was due solely to his actions and not to any action or lack of action on the part of the Applicant. Mr Close provided a fulsome explanation of his conduct and accepted that the failure to file the application on time was his and his alone.

[3] The Respondent’s representative in its written submission identified the relevant law in relation to representative error as a reason for delay in an extension of time application as that set out in Officeworks Ltd v Parker[2014] FWCFB 5779 at [13] to [16]. I apply this decision to the present matter.

[4] The Respondent’s Outline of Submission challenges the Applicant’s reason for the delay in filing as follows:

“8. The Applicant has not filed any evidence in the Commission relating to the reasons for the delay. The Commission has before it the Applicant's Outline of Submissions. These submissions have not been sworn or affirmed by Mr Close. The Commission cannot determine the Applicant's conduct which may (or may not) have contributed to the delay.

9. In respect of section 394(3)(a) of the FW Act, the Respondent submits that the Applicant's reasons for delay, as submitted by the Applicant, do not amount to exceptional circumstances. In the absence of any direct evidence from the Applicant or her representative, the Commission cannot determine that "representative error" actually occurred and, whether the Applicant was blameless in relation to the late lodgement or whether she herself contributed to the late lodgement.”

[5] The Commission accepts that there is no sworn evidence from either the Applicant or Mr Close. However, the Applicant’s Outline of Submission reads as a witness statement of Mr Close and whilst this is unsworn the Commission can have, and has had, regard to the personal explanation provided by Mr Close. In circumstances where there is no evidence from the Respondent which challenges the personal account of Mr Close then Mr Close’s personal account of his actions is the best evidence available to the Commission.

[6] No challenge has been made in relation to the honesty or credibility of Mr Close and the Commission has no reason to treat the personal account given by Mr Close as anything other than completely transparent and truthful.

[7] In the present matter it is clear and I so find that the delay in filing the Applicant’s unfair dismissal application is properly apportioned (in full) to Mr Close, the Applicant’s representative, and that the Applicant is blameless in relation to the delay.

[8] Whilst the Applicant has provided an acceptable reason for the delay and one which supports a grant of an extension of time the Commission must not grant an extension of time unless the Commission is satisfied that there are exceptional circumstances taking into account each of the relevant matters enumerated in s.394(3).

[9] I agree with the submission of the Respondent that the matter raised by s.394(3)(b) is not relevant in the present matter given that the Applicant became aware of the dismissal at the time of the dismissal.

[10] In relation to paragraph 394(3)(c) the Respondent contends that:

“12. In respect of section 394(3)(c) of the FW Act, the Respondent submits that apart from lodging the Application on 5 July 2015, (more than 6 weeks after the end of her employment with the Respondent), the Applicant took no action to dispute her dismissal.

13. In this regard, the Respondent submits that it was unaware that the Applicant had any concerns regarding the cessation of her employment.

14. Whilst the Applicant's submissions suggest that the Applicant contacted Shine Lawyers following the cessation of her employment with the Respondent, there is no direct evidence of the actions (if any) taken by the Applicant to dispute the dismissal.

[11] Nothing has been put on behalf of the Applicant to suggest that the Respondent’s contention is not correct. In the present matter this criteria does not add to matters which may weigh in favour of a grant of an extension of time nor does it add to matters which weigh against a grant of an extension of time.

[12] In relation to paragraph 394(3)(d) the Respondent contends that:

“15. With respect to section 394(3)(d) of the FW Act, the Respondent submits that were the Fair Work Commission to allow the Application to proceed in a different time frame than that stipulated at section 394(2)(a) of the FW Act, the Respondent would face prejudice by reason of additional resources, inconvenience and potential costs associated with defending the Application on substantive terms in circumstances where the Respondent considers it likely to fail on the merits of the Application.”

[13] The Respondent has led no evidence to support the contention that the Respondent will suffer prejudice if the Applicant is allowed to commence her unfair dismissal claim out of time. Even in the absence of evidence I accept that the Respondent will suffer some level of prejudice if an extension of time is granted to the Applicant. This criteria weighs against the Commission granting an extension of time.

[14] In relation to paragraph 394(3)(e) the Respondent contends that:

“17. As to the merits of the Application, the Respondent submits that the Application in substantive terms is without merit because:

(a) the Applicant faces an additional jurisdictional hurdle on the basis that, in the Respondent's submission, the cessation of the Applicant's employment was not at the initiative of the Respondent; and/or

(b) in the alternative, the termination of the Applicant's employment was not harsh, unjust or unreasonable on the basis that the Respondent had a valid reason for the termination of the Applicant's employment, being that the Applicant could no longer perform the inherent requirements of her position with the Respondent.

18. The Respondent reserves the right to provide evidence in respect of the merits of the claim and jurisdictional objection to the applicant at a later time, if necessary.

19. The Respondent submits that the Fair Work Commission should find accordingly and dismiss the Application.”

[15] The proper approach to be taken in relation to a consideration of the merits of the unfair dismissal application when the Commission is considering an application for an extension of time was set out in Kyvelos v Champion Socks P/L. 1 In the present matter apart from the Form F2 there is nothing from either the Applicant or the Respondent which addresses the merits of the application. In the present matter this criteria has neutral weight in considering the application for a grant of an extension of time.

[16] I agree with the submission of the Respondent that the matter raised by s.394(3)(f) is not relevant in the present matter.

[17] Having taken into account each of the relevant matters in s.394(3) of the Act the Commission is satisfied that there are exceptional circumstances which warrant the grant of an extension of time to the Applicant to file her unfair dismissal application.

[18] The Applicant is granted an extension of time such that the Applicant may file her unfair dismissal application before close of business on 6 July 2015.

[19] As the application was filed before close of business on 6 July 2015 the application is within time.

[20] The file in this matter will be allocated for further programming.

COMMISSIONER

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