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Fair Work Act 2009
s.394—Unfair dismissal
Miss Katarina Lesic
v
No 1 Riverside Quay Pty Ltd T/A BP Australia
(U2014/9753)
DEPUTY PRESIDENT MCCARTHY PERTH, 6 OCTOBER 2014
Application for relief from unfair dismissal - extension of time.
[1] On 4 June 2014, Miss Katarina Lesic (the Applicant) lodged an Unfair Dismissal
Application (the Application). The Applicant asserts that she was unfairly dismissed from her
employment with No 1 Riverside Quay Pty Ltd T/A BP Australia. The Applicant states that
her dismissal took effect on 8 March 2013. The Application was therefore lodged well outside
the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).
[2] The reasons for the delay and why the Fair Work Commission (FWC) should accept
the Application out of time were stated in the Application as follows:
“Was not aware of the 21 day timeframe.
Have posted to Industrial Relations Dispute WA, told that was state, should do federal,
because BP Aust is a large company Pty Ltd. Also was not told or aware of unfair
dismissal, was not suggested to me by Management terminating me.
- Based on excessive overtime workload was unfair causing accidents.
- Also two months prior to termination a probationary performance
discussion/coaching form was signed to stop termination due to three written
warnings, this was overlooked by the terminating Manager, who said it was too
late so I felt embarrassed to take the issue further.”
[3] On 16 June 2014, I wrote to the Applicant requesting that she address the
considerations I must take into account in determining whether exceptional circumstances
exist to allow an extension of time. On 16 June 2014, the Applicant provided further
submissions. The Applicant also provided additional submissions on 28 July and 3 September
2014. In summary the essence of the Applicant’s submissions were as follows:
The Applicant did not know that there was a 21 day timeframe to process an unfair
dismissal claim.
[2014] FWC 6647 [Note: An appeal pursuant to s.604 (C2014/8372) was
lodged against this decision - refer to Full Bench decision dated 29 January
2015 [[2015] FWCFB 395] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB395.htm
[2014] FWC 6647
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At the time of the dismissal the Applicant did not think that an unfair dismissal
application would be looked at because she had received three warnings. The
Applicant also submitted that she felt embarrassed to complain about unfair
dismissal and did not feel confident that a court would listen because of the written
warnings.
There was a coaching contract signed by management and her agreeing to monitor
her performance for 12 months. The Applicant now believes that the dismissal was
a breach of that contract.
The Applicant was not advised by the Manager dismissing her that she should, or
could, apply for unfair dismissal. The Applicant submits that the she feels the
Respondent was being ignorant to her needs as a person who would be
unemployed.
After not finding work for 12 months, the Applicant felt distressed being
unemployed and thought that she should find out about unfair dismissal. Upon
finding out about the 21 day timeframe the Applicant decided to apply anyway for
reemployment and try for an extension of time.
The Applicant claims that the mistakes that she made was due to excessive
overtime that meant that she felt tired for work.
The Applicant submits that she is still unemployed and looking for work and would
like to do lodge the unfair dismissal application to get her job back. If the
Applicant found work elsewhere the she would stop the unfair dismissal claim.
[4] Two attempts were made by my Chambers to serve the Application and the
Applicant’s submissions on the Respondent, however, this correspondence was returned to
the FWC marked “RTS - not at this address left”. On 13 August 2014, I wrote to the
Applicant requesting that she provide further contact information for the Respondent. The
Applicant subsequently provided alternative contact information to the FWC.
[5] On 11 September 2014, the Respondent provided submissions in response to the
Applicant’s submissions.
Considerations
[6] The Applicant’s reasons for the delay included the following:
that she was unaware of the timeframe for lodging an unfair dismissal application;
the Manager dismissing her did to inform her that she could lodge an unfair
dismissal claim;
she felt embarrassed to complain and did not think that the Court would listen to
her as she had received three warnings; and
[2014] FWC 6647
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she incorrectly made an application to Industrial Relations Dispute WA and was
advised that she need to send the unfair dismissal application to “Federal”
(presumably the Fair Work Commission).
she is still unemployed after being dismissed 12 months ago and would like to get
her job back.
[7] I do not find that any of these reasons individually or collectively weigh in favour of a
finding of an exceptional circumstance.
[8] It seems the Applicant became aware of her dismissal when it occurred on 3 March
2013. This element of my considerations weighs against a finding of exceptional
circumstances.
[9] There is no information that the Applicant provided that addresses any actions that she
took to dispute the dismissal. I note that whilst the Applicant has submitted that she posted an
application to Industrial Relations Dispute WA (presumably the Western Australian Industrial
Relations Commission), she has not advised when the application was posted or when she
was advised that she needed to make the application in the Federal jurisdiction. Therefore,
even if the Applicant did attempt to make an unfair dismissal application following her
dismissal there is no explanation for the delay of approximately 453 days in lodging the
Application with the FWC.
[10] The Respondent submitted that the Human Resource Advisor dealing with the matter
is no longer employed by the Respondent and evidence relevant to the Applicant’s dismissal
no longer exists. I find that the Respondent will suffer some prejudice should this Application
be allowed as it is approximately 15 months since the dismissal took effect.
[11] There is limited information regarding the merits of the Applicant’s Application and
without detailed submissions from the parties regarding the merits of the Application the
question of merit must be given neutral weight.
[12] The fairness between the Applicant and other persons in a similar position weighs
against a finding of exceptional circumstances.
[13] I find that exceptional circumstances do not that exist. Therefore, I will not extend the
time for the filing of the Application. The Application is dismissed.
DEPUTY PRESIDENT
Final written submissions:
Applicant, 3 September 2014.
Respondent, 11 September 2014
Printed by authority of the Commonwealth Government Printer
[2014] FWC 6647
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Price code A, PR555765
