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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
K Annear
v
Centaurus Investments Pty Ltd T/A Bayside Day Procedure Centre
(U2015/4951)
SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 15 JUNE 2015
Application for relief from unfair dismissal – extension of time – jurisdictional objection
upheld – no exceptional circumstances – application dismissed.
[1] This is an application by Ms K Annear (the Applicant), pursuant to s.394 of the Fair
Work Act 2009 (the Act) in respect of the alleged termination of her employment by
Centaurus Investments Pty Ltd T/As Bayside Day Procedure Centre (the Respondent).
[2] The application was made on 17 April 2015.
[3] The Applicant’s application (Form F2) identified that the termination date had effect
as of 26 March 2015. The Respondent’s response (Form F3) cited the date on which the
termination had effect as 27 March 2015 and the respondent supplied a separation certificate
to the Applicant on 20 April 2015, stating that the employment ceased on 2 April 2015. A
corrected separation certificate identifying the termination date as 26 March 2015 was sent by
the Respondent to Centrelink.
[4] When the termination had effect is a question of fact. The Applicant was advised of
her termination during the day of 26 March 2015 by Ms L Benett (the Respondent’s CEO) but
asked by the Applicant to reconsider her decision. Ms Benett agreed to do so, did so and
communicated with the Applicant at 7.00 p.m. on 26 March 2015, confirming to the
Applicant that she no longer had a position with the Respondent. I find that the termination
had effect on 26 March 2015.
[5] Whilst the separation certificate provided to the Applicant by her employer on
20 April 2015, stated that the termination had effect on 2 April 2015, the termination was
communicated to the Applicant by Ms Benett on the evening of 26 March 2015. I am not
satisfied that the error in the separation certificate retrospectively altered the date of the
termination of employment. Nor am I satisfied that the error in the initial separation certificate
affected the Applicant’s understanding of the date the termination had effect, given the initial
certificate was not supplied to the Applicant until after she had lodged her application.
[6] I find that the application was made one day beyond the time period prescribed in
s.394(2)(a) of the Act and if it is to be accepted requires an extension of the time for
[2015] FWC 3994 [Note: An appeal pursuant to s.604 (C2015/4563) was
lodged against this decision - refer to Full Bench decision dated 9
September 2015 [[2015] FWCFB 5263] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5263.htm
[2015] FWC 3994
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lodgement until 18 April 2015, pursuant to s.394(2)(b) by the Fair Work Commission (the
Commission) which requires satisfaction that there are exceptional circumstances (s.394(3))
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.”
The reason for the delay
[7] The Applicant’s explanation for the delay in her written materials related to a delay in
providing information in relation to the incomplete application lodged by her (on 17 April
2015) and not to the failure to lodge that incomplete application on time. The delay in
lodgement, however, relates to the date of lodgement of the incomplete application –
26 March 2015 – not the date on which the missing information was provided to the
Commission in an amended application of 28 April 2015.
[8] No explanation was offered by the Applicant to explain the failure to file the
incomplete application by 16 April 2015, as required by s.394(2)(a) of the Act, other than that
the Applicant was not the type to cause trouble and she was motivated to make an application
in part because of the manner in which she was treated by Ms Benett in respect of the
provision of a separation certificate, which came to a head on 17 April 2015.
[9] I am not satisfied that this satisfactorily explains the failure to lodge the application in
time nor that the explanation establishes exceptional circumstances for the late lodgement.
[10] The reasons relied on do not support a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[11] The Applicant became aware of the termination on 26 March 2015, as confirmed in
the telephone call from Ms Benett. This consideration lends no support to a finding of
exceptional circumstances.
Any action taken by the person to dispute the dismissal
[12] The Applicant took no action to dispute the dismissal other than to lodge her s.394
application. This consideration does not establish exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[13] In the context of the one day delay in lodgement, and in the absence of any evidence to
support prejudice to the Respondent, I find that there would be no prejudice to the Respondent
from the acceptance of the late application. This is a neutral consideration in the
circumstances of the current matter.
[2015] FWC 3994
3
The merits of the application
[14] There is a factual dispute as to the circumstances relied on by the Respondent to
terminate the employment of the Applicant. This conflict could only be resolved on the basis
of a full case as to the merits. Without hearing that evidence, I cannot find that the substantive
case of the Applicant is devoid of merit. This is a neutral consideration in the circumstances
of the current matter.
Fairness as between the person and other persons in a similar position.
[15] No issue about fairness in relation to other persons had been raised. This is a neutral
consideration in the circumstances of the current matter.
Conclusion
[16] Having considered all of the matters to which my attention is directed by the Act, I am
not satisfied that there are exceptional circumstances which would provide power to and
warrant, as a matter of discretion, my granting an exception to the statutory time limit. On that
basis, the application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
K Annear with V Skeen on her own behalf.
N Howells-Schramm with M Badov for the Respondent.
Hearing details:
2015.
Melbourne:
June 12.
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