Wight v RH Minter Pty Ltd T/A Mortuary Funeral Educators
[2010] FWA 2366
•22 MARCH 2010
[2010] FWA 2366 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
Wight
v
RH Minter Pty Ltd T/A Mortuary Funeral Educators
(U2010/5676)
COMMISSIONER WHELAN | MELBOURNE, 22 MARCH 2010 |
Extension of time—s.643, Workplace Relations Act 1996.
[1] In this matter the applicant, Ms Wight has made an application for relief with respect to the termination of her employment by the respondent. The application was lodged on 2 February 2010. The termination, however, occurred on 20 April 2009. By virtue of the provisions of Item 11 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 as the conduct, namely the termination of the employment, occurred prior to 1 July 2009 the provisions of the Workplace Relations Act 1996 continue to apply.
[2] The provisions of section 643 of the Workplace Relations Act 1996 require that an application for relief in respect of termination of employment must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission (in this case, Fair Work Australia) allows. A note in the relevant section refers to the principles in Brodie-Hanns 1as having application to the exercise of that discretion.
Background
[3] With one exception the facts concerning the termination of the applicant’s employment are essentially not in dispute. Ms Wight was the part-time education administrator for RH Minter trading as Mortuary Funeral Educators. There was also a part-time assessor, Mr Martin. On 20 April 2009, Mr Nelson, who is an advisor to the respondent spoke to Ms Wight about an unrelated matter. After discussion with one of the directors of RH Minter he advised Ms Wight that her services were no longer required.
[4] It was Ms Wight’s evidence that Mr Nelson told her that this was because the business was being sold. It was Mr Nelson’s evidence that he told Ms Wight that she was being made redundant for economic reasons and second, that the business was being sold. Ms Wight then expressed an interest in buying the business and was advised by Mr Nelson to get her accountant to speak to him. He would put her accountant in touch with the respondent’s accountant and they could send her the documents for sale of the business.
[5] Ms Wight did this and contact was made with the respondent’s accountant who agreed to provide documents for the sale of the business to her. When these did not arrive Ms Wight sought to follow this up and was advised to contact the respondent’s solicitor. Further contact with the respondent’s accountant did not result in receipt of any contract for sale and some five weeks after the dismissal she heard through a former colleague that the business was being sold to Nelson Brothers, Funeral Directors.
[6] On about 29 or 30 December 2009, Ms Wight because aware that the business had not been sold and was still operated by RH Minter. She did some ringing around in early January and was given some free advice by Slater and Gordon solicitors. They advised her that her application was out of time but directed her to where she could make an application. This occurred on 2 February 2010.
The submissions
[7] Ms Wight stated that she was told that her employment was being terminated because the business was being sold. She sought to purchase the business but was not given an opportunity to do so. She was told that the business was being sold to someone else and did not become aware until some eight months after the dismissal that the business had not been sold.
[8] When asked by Mr Nelson why she did not proceed with her application when she was told that the business was being sold to someone else Ms Wight stated that she did not know that she able to do so.
[9] Mr Nelson referred to the principles in Brodie-Hann. He submitted that the applicant had not provided any reason, let alone an acceptable reason for the delay in lodging the application. Further she made no attempt to contest the termination other then to ask why she could not stay until the business was sold. The respondent would be prejudiced if an extension of time was granted as after nine months the respondent should expect no further action arising out of the termination.
[10] On the issue of merit Mr Nelson submitted that should the application for an extension of time be granted the respondent would argue that there was a genuine operational reason for the termination relating to the economic position of the employer’s business.
Conclusion
[11] As Marshall J stated in Brodie-Hanns, 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 the time.
[12] In this case the time period from the termination to lodgement of the claim is extensive. Ms Wight relies on her lack of knowledge that the business had not been sold to explain her failure to take action at an earlier time. It is apparent however from material before Fair Work Australia that she continued to have contact with persons associated with the business and could have ascertained that it was still being operated by RH Minter at an earlier time. Further it does not explain the delay from early January, when she was advised by Slater and Gordon of the time requirements, and early February when an application was finally lodged.
[13] Further it is not apparent that the application would fall within the jurisdiction of Fair Work Australia in any event. Mr Nelson stated that the termination was for a genuine operational reason and on the applicant’s own evidence the respondent had raised financial concerns with her.
[14] More importantly, Mortuary Funeral Educators appears to have had only two employees and the whole RH Minter group about 60 employees Australia–wide.
[15] If this is the case, as the application would be subject to the provisions of section 643(10) of the Workplace Relations Act 1996, it would not be able to proceed.
[16] For these reasons I am not satisfied that I should exercise my discretion to extend the time in which this application can be lodged.
[17] The application is therefore struck out.
COMMISSIONER
Appearances:
L. Wight, applicant in person.
G. Nelson, for R H Minter Pty Ltd t/as Mortuary Funeral Educators.
Hearing details:
2010.
Melbourne:
March 12.
1 Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298
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