Suzanne Pember v Am Pisconeri

[2019] FWC 7425

[2019] FWC 7425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Suzanne Pember
v
AM Pisconeri
(C2019/4834)

COMMISSIONER WILLIAMS PERTH, 29 OCTOBER 2019

Application to deal with an unlawful termination dispute.

[1] This decision concerns an application made by Ms Suzanne Elizabeth Pember (the Applicant). The application was made under section 773 of the Fair Work Act 2009 (Cth) (the Act) and concerns her alleged unlawful termination. The respondent is A.M. Pisconeri (the Respondent).

[2] The application was made on 6 August 2019.

Background

[3] Ms Pember’s application indicates that she was notified that her employment was terminated on 19 June 2018. For reasons that will become apparent, I believe this to be a typographical error and the date she was notified her employment was being terminated was in fact 19 June 2019. Her application however says the termination of her employment took effect on 26 July 2019.

[4] In answer to question 2.5 on the application the Applicant ticked, yes, she has made another claim to the Fair Work Commission (the Commission) or to another organisation regarding her termination.

[5] The Respondent in its response submits that the date the Respondent notified the Applicant of the termination was 19 June 2019. The Respondent submits the Applicant was paid five weeks pay in lieu of notice and she was not required to, and did not, work these five weeks and so the employment was terminated on 19 June 2019.

[6] The Respondent objects to the application on the ground that the application has been lodged more than 21 days after the termination took effect and the Applicant has made another claim to the Commission or another organisation regarding her termination.

[7] Consequently, on 21 August 2019 the Commission wrote to the parties highlighting the Respondent’s jurisdictional objections and providing relevant extracts of sections of the Act.

[8] The Applicant was directed to provide any witness statements or submissions regarding those objections by 10 September 2019. Nothing was received from the Applicant by this date and the Commission wrote a second time to the Applicant on 12 September 2019, pointing out her non-compliance with the Commission’s prior directions and providing her with an extension of the period to respond to 19 September 2019.

[9] Following a number of phone enquiries to the Commission the Applicant did on 19 September 2019 provide a bundle of documents. The Applicant did not provide a witness statement of any description. The documents she provided included what appeared to be extracts of her bank accounts transactions and five medical certificates.

The legislation

[10] Section 774 of the Act provides the power for the Commission to extend the period within which an application is made and at subsection 774(2) prescribes matters that the Commission must take into account in deciding whether or not there are exceptional circumstances warranting an extension of time being allowed to an Applicant to make their application. This section is set out below.

“774 Time for application

(1) An application under section 773 must be made:

(a) within 60 days after the employment was terminated; or

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

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

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; 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.”

The evidence before the Commission

[11] Attached to the application is a letter of termination from the Respondent dated 19 June 2019. That letter amongst other things says that the letter is written confirmation of termination of the Applicant’s employment. The letter explains that she will not be required to attend work, and she will instead be paid five weeks pay in lieu of notice.

[12] On the information provided I am satisfied that her employment was terminated with pay in lieu of notice on 19 June 2019.

[13] The manner in which the Applicant completed the application at question 2.3 indicates she was unsure whether she had made the application within 21 days after her employment was terminated.

[14] The application goes on to provide an explanation for the delay in making this application beyond the 21 days. The Applicant states she has been battling pneumonia and anxiety and lives 100 km from Perth. She states that when hospitalised in Perth she was delayed back. She says she also had to engage Wageline due to no payslips and during this time the Respondent bullied and threatened her. The Applicant also mentions her Auntie vanished three months ago and her family and her have had to deal with all that entails.

[15] The five medical certificates the Applicant has submitted to the Commission are all from the same general practitioner in Lancelin where the Applicant lives. Each medical certificate states she has a medical condition and is unfit to work. Collectively the medical certificates span the period 13 June 2019 to 30 August 2019.

Consideration

[16] Applicants are able to make applications by completing the requisite form, as the Applicant did in this case, and under the Commission’s Rules are able to then lodge their application in a number of different ways. The lodgement options available to an Applicant are to hand deliver the application to an office of the Commission, send it by post, email it to the Commission, use the Commission’s electronic lodgement facilities or finally to send a facsimile to the Commission.

[17] Turning to consider the circumstances in this matter.

[18] With respect to the reasons for the delay in making the application. The medical certificates provided by the Applicant contain no detail as to what her medical condition was but rather only refer to her as being unfit to work. The medical certificates do not demonstrate that the Applicant during this period was unable to make this application for medical reasons. In fact on the day the Applicant made the application she was in receipt of a medical certificate that covered her from 25 July 2019 to 30 August 2019.

[19] With respect to the Applicants hospitalisation the Applicant has not said how long this was for, nor when this occurred nor what her medical condition was during this period. Again, the fact the Applicant was hospitalised alone does not demonstrate she was unable to make this application for medical reasons.

[20] As to the other personal difficulties, which I accept unfortunately the Applicant was experiencing which she refers to in her answer to question 2.3, the limited information is not sufficient to satisfy the Commission that these difficulties alone nor considered together are an acceptable reason for the delay in making this application.

[21] The Applicant has provided an acceptable explanation for the delay in making this application.

[22] Other than contacting Wageline regarding her payslips it is not apparent the Applicant took any other action to dispute the termination of her employment.

[23] The period of delay is not such that it would particularly prejudice the employer if an extension of time was granted.

[24] The Applicant has provided considerable detail in her application as to why she has made this application however little of it appears to relate to matters that could arguably amount to a breach of section 772(1), other than the fact that in January 2019 she did seek help apparently from WorkSafe. The Respondent both in the letter of termination and the reply lodged with the Commission submits that the Applicant’s employment was not terminated for reasons that would be unlawful but rather due to unsatisfactory performance.

[25] There are clearly fundamental conflicts between the parties as to what has occurred in this instance. Consequently, the Commission is not able to form any clear view as to the merits of the application, which for the purposes of the extension of time application remain a neutral factor.

[26] There is no relevant information regarding fairness between the Applicant and other persons in a like position.

Conclusion

[27] The onus is on an Applicant who has not made their application within 21 days after their employment was terminated, to demonstrate to the Commission that there are exceptional circumstances which warrant the Commission extending the period for them to make their application.

[28] Taking into account the information provided by the Applicant and the Respondent as detailed above I am not satisfied that in this case there are exceptional circumstances that warrant the Commission allowing a further period for this application to be filed.

[29] This application has been filed out of time, is not properly before the Commission, and consequently an order will now be issued dismissing the application.

[30] Given this outcome it is not necessary to determine the Respondent’s second ground of objection.

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