Alex Macatangay v Sitemec Engineering Ltd T/A Sitemec Engineering

[2018] FWC 4480

[2018] FWC 4480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alex Macatangay
v
Sitemec Engineering Ltd T/A Sitemec Engineering
(U2018/5091)

DEPUTY PRESIDENT MASSON MELBOURNE, 6 AUGUST 2018

Application for an unfair dismissal remedy - extension of time – application filed within 21 day period – jurisdictional objection dismissed...

Introduction

[1] Mr Alex Macatangay (the Applicant) had been employed by Sitemec Engineering Ltd T/A Sitemec Engineering (the Respondent) since 26 September 2016. The Applicant alleges that the termination of his employment by the Respondent was unfair in that he was forced to resign.

[2] A completed Form F2 – Unfair Dismissal Application form was filed by the Applicant with the Fair Work Commission (Commission) on 16 May 2018. According to the application, the Applicant ceased employment with the Respondent on 26 April 2018. Consequently, the application appeared to have been made within 21 days after the dismissal took effect on 26 April 2018, as required under s 394(2)(a) of the Fair Work Act 2009 (the Act).

[3] The Respondent objected to the application on two grounds. Firstly, that the application had not been made within 21 days of the dismissal taking effect and secondly, that the Applicant was not dismissed but had resigned from his employment with the Respondent.

[4] Determination of the extension of time application was set down for a hearing/conference and conducted before me by telephone on 3 August 2018. I decided to conduct a conference pursuant to s 398 of the Act to determine the extension of time application and jurisdictional objection raised by the Respondent.

[5] The Applicant appeared at the conference and was represented by Ms Cyril Gabito of Gabito Lawyers who was granted permission to appear pursuant to s 596(2) of the Act. Mr Adrian Wescombe who is the Managing Director of the Respondent appeared on behalf of the Respondent.

Statutory provisions

[6] The relevant statutory provisions are to be found at s 394 of the Act and provide as follows:

“394  Application for unfair dismissal remedy

(1)  A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1:       Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2:       For application fees, see section 395.

Note 3:       Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

Consideration

[7] The Applicant submitted that his employment was terminated on 26 April 2018. No letter of termination was provided.

[8] The Respondent submitted that the termination had been one of verbal resignation rather than at initiative of the employer. The termination date of 26 April 2018 was confirmed by the Respondent in its Form F3 – Employer response 1; the filed material2; in its oral submissions; and in correspondence from the Respondent to the Applicant’s solicitor dated 9 May 20183 in which the Respondent specifically referred to several performance meetings conducted with the Applicant including a final one on 26 April 2018.

[9] On the basis of the materials filed and submissions of the parties I am satisfied that the termination date of the Applicant was 26 April 2018. The Applicant filed his application for an unfair dismissal remedy on 16 May 2018 which was 20 days after the date of termination.

[10] The application was filed within 21 days of the Applicant’s termination of employment as required under s 394(2)(a) of the Act. The Respondent’s jurisdictional objection is consequently dismissed. An Order to that effect will be issued with this decision and the matter will now be referred for further programming.

DEPUTY PRESIDENT

Appearances:

C Gaub Gabito for the Applicant.

A Wescombe for the Respondent.

Hearing details:

2018.

Melbourne.

August 3.

Printed by authority of the Commonwealth Government Printer

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 1   Form F3 - Employer Response of Sitemec Engineering Ltd T/A Sitemec Engineering, dated 25 July 2018.

 2   Respondent submissions of Sitemec Engineering Ltd T/A Sitemec Engineering at paragraphs [1b] & [1c], dated 26 July

2018.

 3   Form F2 – Unfair Dismissal Application Attachment – Letter from Sitemec Engineering to Gabito Lawyers, dated 9 May

2018.