Adam Jensen v Australian Access Hire Pty Ltd

[2014] FWC 2513

[2014] FWC 2513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Jensen
v
Australian Access Hire Pty Ltd
(U2013/17242)

COMMISSIONER DEEGAN CANBERRA, 14 APRIL 2014

Application for relief from unfair dismissal.

[1] On 10 December 2013 Mr Adam Jensen, the applicant, lodged an application under s.394 of the Fair Work Act 2009 (the Act) claiming that the termination of his employment with Australian Access Hire Pty Ltd (the employer) was unfair.

[2] The employer objected to the application being dealt with by the Fair Work Commission (the Commission) as, contrary to s.394(2)(a) of the Act it was lodged more than 21 days after the termination of the employment took effect. It was not disputed that the applicant was notified of his dismissal on 18 November 2013 and that the dismissal took effect on the same day. The last day for filing in accordance with s.394(2)(a) of the Act, was 9 December 2013.

[3] At a hearing on 5 March 2014 the matter of whether, under s. 394(2)(b) of the Act, further time should be permitted for the lodgement of the application, was considered.

[4] Section 394(2) and (3) of the Act are follows:

“394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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] At the hearing of the matter the applicant’s partner, Ms Melissa Duthie (who assisted the applicant with making the application and represented him at the hearing) gave evidence that:

• The applicant received and gave her the letter terminating his employment on 18 November 2013;



• A request was made to the employer for the provision of pay slips which were received on 29 November 2013 and the same day she assisted the applicant to draft a letter of demand to the employer;



• The letter of demand was sent by email and a copy sent by registered mail;



• On 5 December 2013 Ms Duthie phoned the Fair Work Commission to find out the process for making an unfair dismissal application;



• The person at the FWC advised her to wait until the end of the period she had given the employer (6 December 2013) before making the unfair s dismissal claim;



• Having received no reply from the employer she emailed him on Monday 9 December 2013 advising that she would lodge the unfair dismissal application the next day;



• On 10 December a response was received from the employer’s solicitor and a payment for unpaid wages was made into the applicant’s account;



• She filed the unfair dismissal application that afternoon.

[6] When cross-examined Ms Duthie agreed that in the letter of demand she drafted and sent on 29 November 2013 she had referred to the legal definition of unfair dismissal. Ms Duthie stated that she had found the definition on the Commission’s website. She agreed that she had seen other information on that website about unfair dismissal but claimed that she had not looked at the process for making an application as she had not yet got to that stage. Further she claimed that she was unable to lodge an application for unfair dismissal prior to receiving the pay slips from the employer as she was not aware of the amount owing to the applicant. It was also her evidence that having read the Commission website she believed that the applicant had been made redundant.

[7] Ms Duthie agreed that she had given the employer until Friday 6 December to answer her letter of demand but did not make the unfair dismissal application until 10 December 2013, the day after the 21 day time limit expired.

[8] When it was put to Ms Duthie that nobody from the Commission had advised her to wait until the time limit for her letter of demand expired before making an application, she reiterated that she had been told to wait. She stated that she had also been asked when the termination had occurred but was unsure whether she had been told about the 21 day time limit. It was her evidence that she was advised that if she did not receive a response from the employer she should lodge the application ‘straight away’. 1

[9] Finally, Ms Duthie agreed that while she did not have tertiary qualifications she did have a good command of the English language and was aware where she could find information and guidance about making the application.

[10] It was submitted for the applicant that he had taken action to dispute his dismissal, there was no prejudice caused to the employer by the delay and that part of the delay was caused by the employer’s late provision of pay slips. Further, the employer had been advised on the 21st day that the application would be made.

[11] Submissions were made on behalf of the employer to the effect that the discretion under s394 of the Act to allow further time for lodgement should only be exercised where the Commission is satisfied that there are exceptional circumstances, taken into account the considerations set out in s.394(3) of the Act. It was argued that there was no satisfactory explanation for the delay in lodging and that the advice sought about the payments made to the applicant was not relevant to the question of unfair dismissal. It was also put that the Commission should not accept Ms Duthie had been advised by anybody at the Commission that she should delay lodging her application until the time period set for a response to her letter of demand had expired.

[12] The representative of the employer did not pursue any claim that the employer was prejudiced by the one day delay in filing but noted that the merits of the application would be defended vigorously. No argument was put in relation to the matter of fairness as between the applicant and other parties.

[13] So far as the matters set out in s394(3) are concerned I find as follows:

• The only reasons given for the delay was the decision taken by the applicant and his partner to allow time for the employer to respond to the letter of demand and the late provision by the employer of information concerning payments made to the applicant;



• The applicant became aware of the termination on the date it took effect



• The applicant took action, prior to lodging the application, to contest the dismissal;



• No prejudice was caused to the respondent by the delay in filing of one day;



• On the basis of the evidence contained in the documents already filed in this matter I



• am unable to find that the application is totally without merit; and



• criterion of fairness as between the applicant and other persons in a similar position has not application in this case

[14] Having taken into account those findings set out in [13] above I am unable to be satisfied that there are exceptional circumstances in this case such that further time for lodgement should be permitted. The statutory time limit is very strict and only in exceptional cases should further time be allowed. I make no finding as to whether Ms Duthie was advised by someone at the Commission that she should delay making an application until after the employer had had a chance to respond to the letter of demand. While such advice would be unusual, I note that at the expiration of that time limit Ms Duthie still had three days in which to lodge the application on the applicant’s behalf but failed to do so.

[15] As I am not satisfied that there are exceptional circumstances in this matter the application, no further time for filing will be allowed and the application is dismissed.

Appearances:

Ms M Duthie, on behalf of the applicant.

Mr A Zraika, on behalf of the respondent.

Hearing details:

2014.

Canberra:

March 5.

 1   Transcript PN144

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