Vanessa Jeong v Hands on Computer Training International Pty Ltd (In Liquidation) T/A Australian Institute of Commerce and Technology

[2019] FWC 1079

[2019] FWC 1079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Vanessa Jeong
v
Hands On Computer Training International Pty Ltd (In Liquidation) T/A Australian Institute of Commerce and Technology
(C2019/143)

COMMISSIONER WILLIAMS PERTH, 20 FEBRUARY 2019

Application to deal with an unlawful termination dispute - jurisdiction – constitutional corporation - extension of time.

[1] Ms Vanessa Jeong (Ms Jeong or the Applicant) has made an application to deal with an unlawful termination dispute pursuant to section 773 of the Fair Work Act 2009 (the Act). The respondent is Hands On Computer Training International Pty Ltd (In Liquidation) T/A Australian Institute of Commerce and Technology (the Respondent).

[2] Ms Jeong alleges she was dismissed on 2 November 2018. The application was made on 8 January 2019.

[3] The Respondent in its form F9A-Employer’s Response (the Respondent’s Response) objected to the application on two grounds:

1. The Applicant was entitled to make a general protections application because the Respondent is a constitutional corporation and therefore the Applicant was not able to make this section 773 application.

2. The application was lodged more than 21 days after the alleged dismissal took effect and the Commission should not allow a further period for the application to be made

[4] On 30 January 2019 the Commission wrote to the Applicant inviting her to address both jurisdictional objections raised by the Respondent by no later than 13 February 2019. As at the date of this decision the Applicant has not responded to the Commission’s letter nor otherwise contacted the Commission concerning these objections.

[5] This decision deals with the jurisdictional objections raised by the Respondent.

Is the Applicant entitled to make a section 365 application?

[6] Section 723 of the Act provides that a person must not make an unlawful termination application if the person is entitled to make a general protections court application in relation to the conduct.

[7] The Respondent’s response advises the legal name of the employer was Hands on Computer Training International Pty Ltd. This was not challenged by the Applicant.

[8] I find, based on the information before me, the legal name of the employer in this matter is Hands on Computer Training International Pty Ltd therefore the employer is a constitutional corporation and by virtue of section 14 of the Act a national systems employer.

[9] Given the above finding the Applicant was by virtue of section 13 of the Act a national systems employee and was therefore entitled to make a general protections court application and so is not able to make this application under section 773 of the Act and the application must be dismissed.

[10] If however the above finding is incorrect I will separately deal with whether or not the Commission should allow the Applicant a further period beyond the 21 days to make this application.

[11] Section 774 of the Act allows the Commission to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 774 of the Act below.

“774 Time for application

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

(a) within 21 days after the employment was terminated; 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 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.”

[12] The Applicant at question 2.3 of the application filed provides some explanation for the delay however as stated earlier the Applicant did not respond to the Commission’s invitation on 30 January 2019 to provide further information regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[13] The Applicant explains that she received a termination letter on 2 November 2018.

[14] The Applicant says she has been unemployed since the termination and has also suffered from insomnia and stress. The Applicant states she did not think to make this application earlier and it was only until she had concerns the termination letter would impact her ability to receive a redundancy payment that she decided to make this application.

[15] Whilst it is understandable this situation has caused the Applicant difficulty to sleep and increased stress there is no information, medical or otherwise, before me that provides any insight into the extent to which the Applicant was incapacitated in the period after her dismissal took effect nor whether or not she was able to make this application earlier than the date on which it was made. Consequently I am not satisfied this explanation was an acceptable reason for the delay nor was it an exception circumstance.

[16] The Applicant’s lack of awareness regarding the timeframe for this application is not uncommon and is not an acceptable reason for the delay. In addition her choice to only consider making an application after she had concerns regarding a redundancy payment is also in my view not an acceptable reason for the delay.

[17] Considering the explanations for the delay in making this application I am not satisfied that there is any acceptable reason for the delay in this instance.

Whether the person first became aware of the dismissal after it had taken effect

[18] The Applicant was made aware of her alleged dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[19] The Applicant has not disputed her dismissal other than to make this application.

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

[20] 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

[21] There is limited information regarding the merits of Ms Jeong’s application. The parties disagree as to what occurred in the lead up to the Applicant’s employment being terminated. 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

[22] This is not a relevant factor in this matter.

Conclusion

[23] I find the Applicant was entitled to make a general protections court application and so is not able to make this application under section 773 of the Act and the application must be dismissed.

[24] If I am wrong, the onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[25] I have considered the information provided. In this case there is no acceptable reason for the delay in making the application and considering the other factors there is nothing of significance weighing in favour of finding there where exceptional circumstances.

[26] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[27] An order [PR705095] to that effect will be issued in conjunction with this decision.

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<PR705094>