[2011] FWA 673 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Susan Rose
v
BMD Constructions Pty Ltd
(U2010/13047)
COMMISSIONER ROE |
BRISBANE, 1 FEBRUARY 2011 |
Unfair dismissal - extension of time for lodging application.
[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Ms Susan Rose (the Applicant) in respect of dismissal by the BMD Group P/L T/A BMD Constructions P/L (the Respondent). At the conclusion of the hearing of this matter I advised the parties that I was refusing to allow an extension of time and was dismissing the Application for unfair dismissal remedy for reasons which I now publish.
[2] The Applicant was assisted by Judith Burgess, a friend. The Applicant gave evidence and Mr Steven Thomas, Human Resources Coordinator for the Respondent gave evidence. Mr Greg Power represented the Respondent.
[3] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
[4] Subsection 394(3) provides:
“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[5] The Applicant says she was dismissed on 9 September 2010 which was the date she was advised by the Respondent that she was being made redundant. The Applicant had been employed for a period of just under two years at the date she was advised of her termination and she received 2 weeks’ pay in lieu of notice and four weeks’ severance pay. Her application for unfair dismissal remedy was dated 4 October 2010 and was received by Fair Work Australia at 9am on 6 October 2010. The Applicant says that she forwarded the form and fee by express post on 5 October 2010. The Respondent does not contest these facts.
[6] The Applicant says that the reasons why an extension of time of 13 days should be granted is that she was suffering from shock and trauma as a result of the dismissal and that she was not aware of the time limit in respect to unfair dismissal. She says that she did not attend her doctor during the two weeks following the dismissal but had trouble sleeping and was in danger of becoming depressed. She then attended her doctor who advised her that she was suffering from depression and anxiety. She then decided to pursue an unfair dismissal claim and was advised by Fair Work Australia about the 14 day time limit and submitted an application without further delay.
[7] I am satisfied by the evidence that the Applicant was ignorant of the 14 day time limit. I am also satisfied that when she made enquiries Fair Work Australia advised her that her potential Application was outside the 14 day limit but correctly advised her that this did not prevent her from making an application since an extension of time can be granted in some circumstances.
[8] The evidence of the Applicant and the Respondent confirm that the Applicant did not take any action to contest the dismissal after the meeting at which the dismissal occurred until shortly before she submitted the unfair dismissal claim. Certainly no action was taken during the 14 day period following the notification of the dismissal.
[9] The evidence of the Applicant does not suggest that she was incapable of taking any action in respect to her dismissal during the two weeks following the dismissal. She was not hospitalised. She says that she was shocked and traumatised but there is no suggestion of incapacity. The Applicant provided a medical certificate dated 16 December 2010 stating that “Susan Rose tells me she was dismissed from her job in September 2010 and has reported to me this has produced anxiety/depression.” This is not strong evidence of incapacity to act during the two week period immediately following the dismissal.
[10] It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.
[11] Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.
[12] The Applicant made submissions about how she felt the circumstances of her dismissal were unfair but they are not particularly relevant to the threshold matter of whether or not there are abnormal circumstances which would justify an extension of time.
[13] The Respondent says that the termination was as a result of a genuine redundancy situation and provided some evidence in support of that contention. The Applicant accepts that the Respondent has consistently said that redundancy was the reason for the termination. However, the Applicant contests the genuineness of this claimed redundancy and I do not conclude that the application is totally without merit.
[14] I turn to consider the particular factors specified in s. 394(3) of the FW Act.
s. 394(3)(a)
[15] The reasons for delay proffered by the Applicant are not sufficiently abnormal or unusual as to justify an extension of time. This is particularly the case given that the Application is significantly out of time.
s. 394(3)(b)
[16] The Applicant was clearly aware of the dismissal on 9 September 2010.
s. 394(3)(c)
[17] I am satisfied that the Applicant did not take any action to dispute the dismissal during the two weeks following the dismissal and prior to filing the application for an unfair dismissal remedy.
s. 394(3)(d)
[18] The Respondent provided evidence that the restructured position has now been filled by a new employee and that therefore reinstatement of the Applicant would cause significant difficulties. I do not see this as creating an obstacle to the Application. It may be a relevant factor in considering any remedy should the Tribunal find that the dismissal had been unfair. I conclude that there is no prejudice to the employer other than the usual prejudice that accompanies any grant of an extension of time.
s. 394(3)(e)
[19] The evidence is clear that the Respondent has restructured the position formerly held by the Applicant and has made the Applicant redundant as a result. Whether or not this was a genuine redundancy and whether or not there were other redeployment opportunities for the Applicant are matters which may be in contention. I cannot conclude that the application is without merit.
s. 394(3)(f)
[20] The factor in s. 394(3)(f) is not relevant in the present case as no other employees were dismissed or made redundant.
Exceptional Circumstances
[21] I adopt the approach to exceptional circumstances set out by Vice President Lawler in Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery. 1
[22] I find that exceptional circumstances do not exist in this case which would justify the granting of an extension of time for the making of the Application of approximately 13 days.
[23] The Application for an extension of time is refused. The Section 394 Application for unfair dismissal remedy cannot proceed and that Application is also dismissed.
COMMISSIONER
Appearances:
Ms Susan Rose representing herself.
Mr Greg Power on behalf of the Respondent.
Hearing details:
2011
Brisbane
1 February
1 Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [PR994029] 25 February 2010, paragraphs 22 to 28.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR506399>