Tania Aiken v Kittredge Pty Ltd T/A the Roxby Tavern

[2014] FWC 3531

[2014] FWC 3531

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tania Aiken
v
Kittredge Pty Ltd T/A The Roxby Tavern
(U2014/6522)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 MAY 2014

Application for relief from unfair dismissal - late lodgement of application - no extension of time granted - application dismissed.

[1] On 22 May 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 10 April 2014 Ms Aiken 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 R D Jones Group T/A Roxby Downs Tavern.

[3] In that application, Ms Aiken advised that, whilst she was advised of the dismissal on 18 March 2014 her dismissal took effect on 20 April 2014. She advised that the application was made within the statutory time limit.

[4] The application was referred to me for consideration. On 7 May 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 22 May 2014. Ms Aiken was required to provide a witness statement and a copy of any document relied upon, by 15 May 2014.

[5] An Employer’s Response (Form F3) to the application was received on 29 April 2014. That response identified the employer as Kittredge Pty Ltd T/A The Roxby Tavern (The Roxby Tavern). It asserted that Ms Aiken’s termination of employment took effect on 18 March 2014. The Form F3 confirmed that The Roxby Tavern objected to the application on the basis that it was lodged outside of the statutory time limit.

[6] Ms Aiken provided material to the Fair Work Commission (FWC) and to The Roxby Tavern on 14 May 2014.

[7] The extension of time issue was considered through a telephone conference on 22 May 2014. A sound file record of this conference was kept. Ms Aiken participated in this conference. The Roxby Tavern was represented by Ms Athanasiou.

[8] The material provided by Ms Aiken on 14 May 2014 addressed the extension of time issue in very limited terms and was primarily directed at the issues associated with the termination of her employment. Nevertheless, Ms Aiken provided advice about the date upon which the termination of her employment took effect and the actions she then took. I have taken all of the information provided to me into account in considering the extension of time issue.

[9] I have amended the application pursuant to s.586 of the FW Act so as to specify the respondent as Kittredge Pty Ltd T/A The Roxby Tavern.

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

[11] 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.”

[12] I have initially considered the date upon which the termination of Ms Aiken’s employment took effect. Notwithstanding that the application asserts that the termination of Ms Aiken’s employment took effect on 20 April 2014, Ms Aiken agreed that this date was specified in error. Ms Aiken concedes that on 18 March 2014 she was advised that she had been dismissed. She also acknowledges that she was provided with written advice on 20 March 2014 which confirmed the termination of her employment effective from 18 March 2014. I have accepted The Roxby Tavern position that the advice provided on the Employment Separation Certificate that the employment termination occurred on 20 March 2014 reflected additional payments made to Ms Aiken in relation to the period of her suspension and hence were in error to the extent that this Employment Separation Certificate suggested that the employment termination took effect on 20 March 2014. Consequently, the application was lodged 2 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Aiken’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] Ms Aiken’s position is that following the termination of her employment she was depressed and that it was not until some later time that a person suggested that she consider an unfair dismissal application. Ms Aiken advised that she then did not have sufficient money to be able to access a library so as to make an application until a few days before she lodged an application. In these respects, I am not satisfied that Ms Aiken has established to me a satisfactory reason for the delay in lodging the application.

[14] On the information provided in Ms Aiken’s application, I am satisfied that she was made aware of the termination of employment decision on 18 March 2014 which I have taken as the date that termination of employment took effect.

[15] Apart from the late lodgement of this application, Ms Aiken telephoned Ms Athanasiou approximately a week after she was dismissed and engaged in a discussion about that dismissal. I am satisfied that this discussion covered the possibility of a reference but that a statement of service was offered and subsequently provided and I have accepted that Ms Athanasiou invited Ms Allen to forward any grievances she had to her by e-mail but that Ms Aiken did not do so.

[16] In terms of the merits of the application, the information before me does not allow any definitive conclusion to be reached. Accordingly I have taken this to be a neutral factor in my considerations of the extension of time issue.

[17] Apart from the extent to which a grant an extension of time would, of itself, prejudice the respondent in this matter, I do not consider the issue of prejudice to be significant.

[18] Considerations of fairness relative to persons in similar circumstances to Ms Aiken do not support an extension of time.

[19] It is appropriate that I note that, after I informed the parties that I proposed to dismiss this application Ms Aiken advised that she was taking prescribed medication for an anxiety disorder. If it had been her position that this prevented the telephone conference on 22 May 2014 from proceeding, I consider that she was under an obligation to advise me of this at an earlier time. However the advice provided to me by Ms Aiken was not to this effect.

Conclusion

[20] For the reasons I have set out above, Ms Aiken’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 (PR551097) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

T Aiken on her own behalf.

L Athanasiou representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

May 22.

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<Price code A, PR551095>