FWA 4525
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tomica Robertson
Zeugma Electrical & Communication Services Pty Ltd
DEPUTY PRESIDENT MCCARTHY
PERTH, 17 JUNE 2010
Termination of employment – extension of time – exceptional circumstances.
 An application in was lodged in Fair Work Australia (FWA) on 15 April 2010 by Ms Tomica Robertson (the Applicant) for an unfair dismissal remedy. According to the application the Applicant's termination of employment took effect on 2 March 2010. The application stated that the application was outside the allowed time because the Applicant had previously applied to the Western Australian Industrial Relations Commission (the WAIRC) and it was “over due on the time limit, previously applied through State WAIRC until told I [the Applicant] needed federal response on 13/4/10.”
 Zeugma Electrical and Communications Services Pty Ltd (“the Respondent”) filed an Employer’s Response to an Application for Unfair Dismissal on 4 May 2010 in which the Respondent objected to the matter proceeding on the basis that the application was lodged outside the 14 days as prescribed by the Fair Work Act 2009 (“the FW Act”). A conciliation conference was held on 6 May 2010 where the matter was not resolved.
 On 11 May 2010 I wrote to the Applicant and advised that as the application was not lodged within the 14 days allowed that the time allowed could be extended if there were exceptional circumstances. I explained that for me to allow an extension of time I must be satisfied that there were exceptional circumstances after taking into account those matters identified in s.394(3).
 The Applicant responded to that request on 19 May 2010 in the following terms:
“My application was delayed due to the fact that I had lodged with the Western Australia Industrial Relations Commission, unfortunately I received an email from the office on the afternoon of 12th April, asking me to call them, I spoke to Trudy the following afternoon being the 13th April,
Trudy informed me that I would need to lodge with the FWA as although i reside in Western Australia I am employed under the federal government laws. I then rang the FWA and we all confirmed that was correct and i lodged with the FWA on the 14th April.
As I am claiming constructive dismissal I did in fact resign from my position as I believe I was pushed to do so, as well as the fact I am pregnant and had been trying to find a new job, I had in fact asked my Employer for my position back, he never replied nor got back to me.
In all fairness I would never have resigned with out being forced to do so. As my employer is not willing to offer my position back nor agree to reconcile any issues, I will be claiming 2 months wages ($10,000), as I have now found a new position, my unemployment period was 2 months therefore I believe this is what I fairly deserve.”
 On 9 June 2010 I wrote to the Registrar of the WAIRC requesting him to provide me with any documents or file notes relating to any application lodged by the Applicant. The Registrar responded on 10 June 2010 advising that an application was lodged by a Ms Tomica Robertson. He also advised in the following terms:
“The application was lodged on-line and received electronically on Saturday 10 April 2010. On the following Monday, 12 April 2010, a Commission officer made contact with Ms Robertson to point out the possibility that the application may not be lodged in the correct jurisdiction, given that the nominated employer was described as a Proprietary Limited Company.
The Commission officer subsequently had a telephone conversation with Ms Robertson and sent her an email dated 19 April 2010 in which the Commission officer confirmed that Ms Robertson had advised that she did not wish to continue with the application in the Western Australian Industrial Relations Commission.
The application was (electronically) lodged on 10 April 2010 and her date of dismissal is given as 1 March 2010. The on-line lodgement system is configured such that if the date of lodgement is more than 28 days after the date of termination, the Applicant cannot complete and submit the form without also completing a subsidiary application, setting out why the application was lodged outside the statutory period.
The explanation given by Ms Robertson in that subsidiary on-line lodgement is;
“l have for the last month been searching for work, unfortunately since I am pregnant it is nearly impossible to find anyone that will employ me as 1 can not stay longer than 6 months. 1 have been seeking legal representation regarding this and also, have put it off for so long as i have been trying to contact my previous employer, but he has been ignoring my phones calls and emails. Therefore 1 am now lodging the claim late due to the fact 1 have been trying to contact him to no avail.””
 I wrote again to the Applicant on 15 June 2010 in the following terms:
“Your email seems to assert that the reason your application was lodged outside the 14 day time limit was because you had lodged an application in the Western Australian Industrial Relations Commission (WAIRC). Enquiries of the WAIRC indicate that an application was lodged with them on 10 April 2010. Your application indicates that your employment was terminated on 2 March 2010. That would mean your application was lodged nearly four weeks out of time. Indeed it would seem your application was not lodged within the time allowed by the WAIRC.
You are again requested to provide information addressing those questions outlined in my letter of 11 May 2010. Another copy of that letter can be provided upon request.”
 The Applicant responded by email on 15 June 2010 in the following terms:
“As per the letter that I had sent to the WAIRC, I stated that I was late in my application because I had indeed tried to speak to Mr Hegarty on numerous occasions, before I took it further, also sending an email and requesting my job back. The WAIRC have a 28 calendar day application time and i was just outside of this, when I gave reason that I had been trying myself to contact Mr Hegarty to conciliate outside of taking things further.
I had been initially trying to work this out with Mr Hegarty to no avail.”
 The Applicant also indicated she would be calling a witness and made other allegations in respect of the treatment of that employee.
 The reason for the delay seems to have primarily been that the Applicant was seeking information from the Respondent, although that was not what was initially the reason provided by the Applicant. The initial reason provided made no reference to that being a reason at all but rather simply that she had lodged with the WAIRC. She lodged the application in the WAIRC on a Saturday morning and she was contacted on the following Monday. Her Application here was lodged within three days of that contact. The application lodged in the WAIRC was also apparently outside the 28 day time limit allowed there.
 There was also no information provided in response to my initial letter to the Applicant on 11 May 2010 regarding what actions she took to dispute the termination (other than the lodging in the WAIRC on 10 April 2010). I infer from her response on 15 June 2010 that she took the action of endeavouring to speak to the Respondent and indeed reconcile the situation including seeking re-employment.
 I have no information to make any observations about whether the Respondent would suffer prejudice. There is also insufficient information to form any firm views about the merits of the application, although I consider the information provided by the Applicant does not evince a strong case. I also note that the Respondent disputes that there was a termination of employment at the Respondent’s initiative. I have taken account of the fairness as between the Applicant and other persons in a similar position.
 There is nothing exceptional about lodging in the WAIRC when the application should have been lodged in FWA. There is also nothing exceptional about the Applicant endeavouring to reconcile with the Respondent or even of having difficulty canvassing anything with the Respondent. Each of those types of reasons are regularly encountered here.
 The provisions of s.394(4) of the FW Act make it mandatory to lodge matters of this type within 14 days. That obligation is not absolute and may be altered if exceptional circumstances exist. The FW Act does not provide for an application to be allowed if there has been inadvertence or accident by the Applicant. If it had been intended that inadvertence or accident to allow applications to be made beyond the 14 days provided then the legislation would have reflected that intention. Those issues, i.e. accident and inadvertence, are matters that may influence whether exceptional circumstances exist but without more than is provided here it is unlikely it would constitute anything exceptional.
 I do not consider that exceptional circumstances exist here and as a consequence the application is not allowed.
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