Industrial Relations Commission of New South Wales CITATION: Tran & Genesis Hair & Beauty [2006] NSWIRComm 1054 APPLICANT: PARTIES: Ms. Christie Tran RESPONDENT: Genesis Hair & Beauty FILE NUMBER(S): 1838 of 2005 CORAM: Ritchie C CATCHWORDS: Claim for unfair dismissal Application was dismissed. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 04/04/06, 10/04/06 DATE OF JUDGMENT: 04/10/2006 APPLICANT: Self represented LEGAL REPRESENTATIVES: RESPONDENT: Mr Samuel Hanna DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 10 April 2006 Matter No IRC 1838 of 2005 IN THE MATTER OF: Christie Tran and Genesis Hair & Beauty Application by Christie Tran re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1054 1 Ms. Christie Tran (the applicant) commenced employment with Samuel Hanna t/as "Genesis Hair & Beauty"(the respondent) in April 2004. The applicant is a senior hairdresser. She worked for the respondent four days a week from Wednesday to Saturday inclusive and was paid $773 per week. The applicant claimed that she was terminated by the respondent on 11 March 2005 during a phone call. She filed a claim for unfair dismissal on 12 April 2005. Conciliation was held on 5 May and 26 May. On the last date agreement was reached to settle the matter but later fell through. The applicant therefore sought for the matter to be arbitrated. 2 A Directions document was provided to both parties with dates expressed for the filing and serving of evidentiary material. Notwithstanding the requirements of both parties to file and serve evidentiary material, the applicant failed to file a witness statement for herself and the respondent relied on a statement he filed in reply to the original unfair application. 3 The hearing was held on 4 April 2006 with both parties representing themselves. It would be fair to say that both parties struggled, especially the applicant, to understand and adopt the normal court proceedings involved in an arbitrated unfair dismissal case. 4 The applicant gave evidence from the witness stand and was subject to cross- examination and questions from the Commission. The applicant stated that she approached the respondent about four to six weeks prior to 29 January 2005 and advised that she wished to take leave to visit her husband in Vietnam. This was part of a process that had to take place as part of her desire to bring her husband to Australia. She stated that she would be gone for approximately seven weeks over the Chinese New Year. She believed that she received consent from the respondent and was due back at work on 16 March 2005. She said bookings from her clients were placed in the appointment book from 16 March 2005 onwards. She arrived back in Australia on 10 March 2005 and rang the respondent on 11 March. At that point she was told that she was no longer needed as he had someone else. 5 The applicant believed that she had therefore been terminated by the respondent on that day. Ten days later she commenced employment with The Balmain Crop Shop earning $740 nett for a five day week. 6 The applicant said she was late in applying for unfair dismissal because she had no knowledge of the process of applying. She had written to the respondent, dated 16 March 2005, which was attached to her original unfair dismissal application. What she claimed from the respondent covered payment of one weeks pay for lack of notice on termination, unpaid occupational superannuation and confirmation of tax deductions from her earnings being directed to the Australian Taxation Office. By this correspondence she never sought reinstatement or compensation. She had given the respondent seven days to reply (although she waited 14 days). The respondent stated in his Employers Reply that he never received the letter. He did receive a note from Australia Post that there was an item to be collected but had no opportunity to collect it. When he received a reminder he went to collect it but it had been returned to sender. When the applicant did make contact with some government department she said she was sent to a Bankstown address before being redirected to Phillip Street where she obtained the correct information. 7 The applicant had filed a number of statements from customers stating their knowledge of the matter and were marked as exhibits. None of these persons were required for cross- examination. There statements had little value for the client other than there was a view by a few that she would be returning back to the respondent's salon. 8 Mr. Samuel Hanna stated that he was the proprietor of the hairdressing salon and that he confirmed that the applicant had worked for him as a part-time hairdresser. It was a small establishment with only one hairdresser and one beautician on strength. He expressed in his statement (Ex.1) that the applicant had come to see him in mid December 2004 to tell him that she would be going overseas to see her husband in Vietnam in February 2005. He said that she had told him at that point, to give him plenty of time to look for another hairdresser. He thanked her for this. Mr Hanna said that he therefore advertised in early January in the Sydney Morning Herald for a replacement. This cost him $300. Approximately two to three weeks prior to her leaving, the applicant came to him and asked if there would be a job available on her return. He said that he could not promise her anything because it would depend on how the new hairdresser goes. He offered for her to give him a call a couple of weeks before she returned to Australia. The applicant stated that she could not call back as she would be in Vietnam, so she would call once she returned back to Sydney. Mr. Hanna stated that a replacement hairdresser commenced in mid February 2005. 9 In about mid March the applicant on her return to Sydney did give Mr. Hanna a call but he advised that the current hairdresser was doing "alright" and there was nothing he could offer her at that stage. Consideration and Decision. 10 The applicant stated that she was terminated on 11 March 2005. She filed her unfair dismissal claim on 12 April 2005. Her claim was therefore 11 days out of time. The Commission has the power to accept an out of time claim if there is sufficient reason to do so (section 85(3)) of the Industrial Relations Act 1996. The reasons for the applicant being late in filing I have previously expressed. 11 I do not believe there exists any hardship to either the applicant or the respondent if the application is or is not rejected and I do not believe the conduct of the employer was a factor in the applicant's actions in filing late. 12 It became clear to me that the obvious reason why the applicant was late in her application was her lack of knowledge about her rights and what actions she could take. As note in Hurrell v Queensland Cotton Corporation Limited {2003} NSWIRCOMM 139: The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. 13 In my view the applicant had an arguable case and a reasonable prospect of success. Taking into consideration the short period of being out of time and the other issues for consideration, I shall use my discretion and allow the application to be accepted. 14 The issue before this Commission is had the applicant resigned when she ceased working after her last shift on 29 January 2005 ? The applicant believed that she did not resign but was returning from leave to continue with her job. The respondent believed that the applicant resigned and he took the appropriate action by replacing her. No other party was present to this conversation therefore the Commission must come to a conclusion based on the evidence before it. Because the applicant failed to file a statement detailing her story, it was left to the Commission to ask a number of questions to the applicant to bring out her side of the case. 15 The applicant stated that she had a meeting with the respondent and worked out when she would return. She said appointments were made post 16 March 2005. The respondent said that she should ring when she returns to Sydney, but only to ascertain how her replacement was going. As he did not involve himself with appointments in the shop he was unaware if any had been made. 16 The respondent stated that when approached by the applicant, it was in the form of she was going overseas for particular important reasons at the time of the Chinese New Year. It was not in the form of a normal request for annual leave. I should note that the applicant by this time had not completed 12 months service therefore did not have an entitlement for annual leave and could only proceed by agreement with the respondent. The applicant also was not going for the "normal" 4 weeks leave but for six weeks. The applicant stated that she was taking part of her leave on a without pay basis. 17 The respondent stated that it would have been good business for there to be no change of hairdresser as the applicant was a good worker, but he owned a one hairdresser establishment, therefore he could not go without a hairdresser for the period of time that the applicant was overseas, and remain in business. He had to replace her and he did so by placing an advertisement and hiring someone. He stated that if he employed another person in the applicant's position and then on the applicant's return to Australia terminated this new person, then he would find himself with a real unfair dismissal claim. 18 The onus in this matter falls on the applicant to prove that a termination by the respondent had taken place. It is my finding based on the limited evidence before me that no such termination by the respondent took place. It is my finding that the applicant of her own actions ceased employment with the respondent when she finished her last shift on 29 January 2005. I saw no evidence that convinced me beyond the balance of probability that her job was guaranteed on her return. She may have hoped that she would get her job back on her return but it was no more than just a hope. 19 This application is therefore dismissed and is now concluded. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.