WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00314

DELIVERED : tuesday, 22 april 2014

FILE NO. : U 136 OF 2013

Applicant

AND

Starick Services Inc

Respondent

Catchwords : Industrial law - Termination of employment - Claim of harsh, oppressive or unfair dismissal - Acceptance of referral out of time - Application referred outside of 28 day time limit - Relevant principles applied - Commission satisfied applying principles that discretion should be exercised - Acceptance of referral out of time granted - Order issued

Legislation : Industrial Relations Act 1979 s 29(1)(b)(i), s 29(2) and s 29(3)

Fair Work Act 2009 s 365

Result : Order issued

Representation:

Applicant : In person

Respondent : Mr D Jones (as agent)

Case(s) referred to in reasons:

Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683

Reasons for Decision

1         Penelope Archer (the applicant) lodged an application in the Commission on 27 August 2013 under s 29(1)(b)(i) of the Industrial Relations Act 1979 (the Act) against Starick Services Inc (the respondent).  The applicant claims that she was unfairly dismissed on 12 July 2013.  As this application was lodged outside of the required timeframe the Commission must determine if this application should be accepted.

Background

2         The applicant commenced employment on 18 July 2009 as a Support Advocate with the respondent which provides services to women seeking support in crisis situations.  She worked four or five 8-hour shifts over a 24 hour period each week.  The applicant was employed pursuant to the terms of a written contract of employment.

3         The applicant was terminated on or about 12 July 2013 when a letter was sent to her explaining that her contract of employment was not being renewed and she was required to work one further shift before ceasing work.  After seeking legal advice the applicant lodged an application in the Fair Work Commission (the FWC) on 18 July 2013.  The applicant alleged she was dismissed in contravention of Part 3-1 of the Fair Work Act 2009 (the FW Act) under the general protections section in s 365 of the FW Act.  On 5 September 2013 Cloghan C of the FWC dismissed this application.  The recitals of his decision states that a conference was listed for 27 August 2013.  Prior to the conference the respondent advised the FWC that it was not a constitutional corporation.  The applicant was also advised of this and was invited by Cloghan C to make a submission as to why her application should proceed, which she did on 23 August 2013.  The FWC conference proceeded on 27 August 2013 with only the applicant in attendance.  The applicant was given the opportunity to make further submissions about the FWC’s jurisdiction to hear her application but she declined to do so.  After the conference ended the applicant lodged this application.

Evidence

Applicant

4         The applicant gave evidence that she was on leave away from Perth when a letter terminating her was sent to her at home and her daughter contacted her and told her about the letter.  The applicant said she was surprised she was terminated because she understood she had ongoing, permanent part-time employment with the respondent.  After it became apparent to the applicant on 27 August 2013 that her application was in the wrong jurisdiction she lodged this application that day.

5         In 2012 the applicant was unwell at times and as a result did not work her rostered shifts and the applicant agreed that she missed approximately 30 shifts in 2013, which she claimed was due to illness.  She had medical certificates explaining her non-attendance which she gave to her manager, Ms Danita Walters.  Her manager discussed her absences with her and through mediation she was told that this was not an issue.

6          Under cross-examination the applicant stated that her union, the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (the union), did not give her advice about where to lodge her application.  The applicant did not attend a meeting scheduled with the union and the Chair of the respondent’s board, Ms Shona Zulsdorf, shortly after her termination because she arrived late for this meeting.  The applicant agreed that the respondent told her prior to the conference held in the FWC on 27 August 2013 that she had filed her application in the wrong jurisdiction and she then stated that she did not lodge this application after this notification as she did not have sufficient funds to pay for lodging another application.

7         The applicant did not work night shifts due to ill health and on some occasions she swapped her shifts with other employees and worked an alternative shift.  This annoyed their manager, but she was not the only person who was doing this.  The applicant stated that the doctors’ certificates she provided when she could not work her shifts where given to the Chief Executive Officer, Ms Arina Aoina and another manager, Ms Sharlene Cooper.  She also provided the respondent with a letter from her medical practitioner about her illness.  The applicant agreed that she cancelled some of her shifts at short notice.

8         Mr David Archer is the applicant’s partner.  He confirmed that the applicant sought legal advice after she was terminated.  When it became apparent that the applicant may have lodged her application claiming unfair dismissal in the wrong jurisdiction the applicant was asked to find out which award applied to her employment to determine the correct jurisdiction to lodge a claim, but she was unable to obtain this information from the respondent.  Mr Archer confirmed that the applicant worked some shifts at short notice and that she obtained medical certificates for the shifts she did not work.  Mr Archer was annoyed that the applicant handed her sick leave certificates to the respondent without keeping copies of these certificates.

Respondent

9         Ms Zulsdorf has been a member of the respondent’s Board since 2009 and Chair of the Board since 2010.  Ms Zulsdorf stated that the applicant was terminated because of her persistent absenteeism over a prolonged period, particularly when she was required to work night shifts. Other staff were not completing shifts and this was escalating because of the applicant’s frequent absences.  After the applicant was terminated staff attendance became more stable.  The applicant’s written contract of employment expired on 30 June 2013 and because of this and the applicant’s ongoing absenteeism the respondent decided not to renew the applicant’s contract.

10      Ms Zulsdorf stated that a meeting was arranged with the applicant and the union shortly after the applicant was terminated however this meeting did not take place as the applicant was late for the meeting.  Ms Zulsdorf stated that a number of discussions took place with the union during the two to three week period after the applicant was terminated and she told the union that the respondent was not a constitutional corporation and was subject to the Commission’s jurisdiction.  Ms Zulsdorf said that the respondent would be prejudiced if this application was accepted as the applicant’s reinstatement is not possible as no shifts were currently available for the applicant to undertake.  The applicant was a problematic employee and productivity had improved since the applicant ceased employment with the respondent.

Submissions

Applicant

11      The applicant claims that her application should be accepted.  It was filed late because she was unaware of which jurisdiction to lodge it in and once she was aware of the correct jurisdiction on 27 August 2013 she lodged this application that day.  The applicant’s termination was unfair as other employees missed shifts and she was being treated differently to these employees.  The applicant maintains that she would be disadvantaged if her application was not accepted because being unable to work is having a negative impact on her.

Respondent

12      The respondent accepts that the applicant may have been confused about which jurisdiction to lodge this application however her evidence with respect to this issue was inconsistent.  The respondent maintains that the applicant delayed this application to suit her own interests and this delay was significant.  The respondent concedes it was aware that the applicant was contesting her termination soon after she was terminated.

13      The respondent will be prejudiced if this application is accepted because the applicant is seeking reinstatement and there is no position available for her with the respondent.  On the issue of merit, the respondent maintains that the applicant has limited prospects of success in proving that she was unfairly terminated given her unreliability in attending work, which constituted a fundamental breach of her contract of employment.

Consideration

14      This application was lodged in the Commission on 27 August 2013.  The applicant was terminated on 12 July 2013 so this application is 18 days outside of the required timeframe.

15      Section 29(2) of the Act requires that applications pursuant to s 29(1)(b)(i) of the Act be lodged within 28 days after the day on which an employee is terminated.

16      Section 29(3) of the Act reads as follows:

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.

17      In reaching a decision in this matter as to whether it would be unfair not to accept this application out of time, I take into account the factors outlined in the Industrial Appeal Court decision in Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 (Malik) as follows:

‘1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.  The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant.  It will show that the decision to terminate is actively contested.  It may favour the granting of an extension of time.

3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion [26].’

18      When considering the issue of fairness, Heenan J also observed the following in Malik:

I accept that the concept of fairness is central to a decision whether or not to accept an application under s 29 which is out of time but, with all respect, I cannot accept the submission which was put in this case that it is fairness to the applicant which is either the sole or principal concern.  Fairness in this situation involves fairness to all, obviously to the applicant and to his or her former employer, but also to the public interest and to the due and efficient administration of the jurisdiction of the Commission which should not be burdened with unmeritorious stale claims [74].

19      In applying these guidelines I am mindful that there is a 28 day timeframe to lodge an application and the Commission’s discretion in relation to a matter of this nature should not be exercised unless it would be unfair not to do so.

20      In my view all of the witnesses gave their evidence honestly and to the best of their recollection.  I therefore accept their evidence.

21      I find that there was an acceptable reason for the delay of 18 days in lodging this application.  I find that the applicant was confused about which jurisdiction she should lodge an application claiming unfair dismissal.  The applicant initially lodged an application claiming unfair termination in the FWC on 18 July 2013, six days after she was terminated.  I find that even though the applicant was told by the respondent prior to 27 August 2013 that the application she lodged in the FWC was in the wrong jurisdiction it finally became clear to the applicant that this was the case at the conference held in the FWC on 27 August 2013.  This resulted in her lodging this application that day, after this conference finished.

22      When considering the issue of merit as a factor to extend time to file this application I find that the applicant may have an arguable case that she was unfairly terminated.  The applicant gave evidence that she gave medical certificates to the respondent explaining her absences and this was corroborated in part by the evidence of Mr Archer.  The manner of her termination is also of concern.  The applicant was terminated by letter whilst on leave so she did not have the opportunity to question the reasons for her termination.

23      I find that the prejudice suffered by the applicant would be greater than that suffered by the respondent if this application is not accepted.  The applicant would not have the opportunity to prosecute her claim, which I have found may have merit.  Furthermore, no specific disadvantage was highlighted by the respondent in meeting this application because of the delay in lodging it.  Whilst the respondent argues that it is not possible for the applicant to be reinstated, this is not the only remedy available to an employee if he or she is successful in their claim for unfair termination.

24      I find that the respondent was aware shortly after the applicant was terminated that she would be contesting her termination as the applicant lodged a claim for unfair dismissal in the FWC on 18 July 2013.

25      When taking into account the above findings and the relevant factors to consider with respect to extending time to file this application and the issue of fairness to both parties, I find that it would be unfair for the Commission not to exercise its discretion to grant an extension of time within which to file this application.  An extension of time in order to lodge this application is therefore granted.