Alexander David Sey v SNP Night Patrol and Inquiry Co Pty Ltd

[2011] FWA 2924

[2011] FWA 2924

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alexander David Sey
v
SNP Night Patrol and Inquiry Co Pty Ltd
(U2010/14857)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 13 MAY 2011

Unfair dismissal remedy, extension of time for making application, ss394, 395 of Fair Work Act 2009

[1] On 8 December 2010 Mr Sey filed an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application arises out of the termination of his employment as a supervisor with SNP Night Patrol and Inquiry Co Pty Ltd (SNP). Although it was not the subject of any submissions before me it would appear that he had worked within the aviation division of SNP at the Sydney International Airport. Mr Sey’s application was filed two days out of time. Section 394(2) requires such an application to be filed within 14 days after the dismissal of an applicant took effect. Fair Work Australia has a discretion to extend the time for filing. The circumstances in which the discretion may be exercised are dealt with in s.394 (3).

[2] The applicant sought an extension of time and that matter was listed before me today. I said that I was persuaded that there were exceptional circumstances such as to warrant the extension of time sought. These are my reasons for that decision.

[3] The applicant represented himself in today’s hearing. There was no appearance for or on behalf of SNP. Nothing was received by my chambers or the Unfair Dismissal Team (UDT) to explain that non-attendance. I considered the contents of the file in this matter and made enquiries of the UDT and am satisfied that the notice of listing was forwarded to SNP at the address for service nominated by it. That address had been used for earlier notifications in this matter.

[4] In reaching my decision to extend the time for filing of the application I took into account the originating application made by Mr Sey and, in particular, the comments therein as to why his application was out of time. I also took into account his submissions filed on 15 April 2011 addressing why time should be extended. These submissions had been filed in accordance with directions that were issued on 1 April 2011. Mr Sey said that he served a copy on SNP. No submission was received from SNP nor was there any contact with the UDT subsequent to the issue of the directions.

[5] The matters I must take into account when considering whether to extend time are contained in s.394 (3) of the Act. That section is in the following terms:

“ FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[6] I accept there is a satisfactory explanation for the two-day delay in filing the application. Mr Sey was advised of his dismissal on 22 November 2010 and he contacted his union, which he described as the “LHMU”, on 29 November 2010. It is unclear as to whether this was in fact United Voice, the registered organisation as it is now known, or Liquor, Hospitality and Miscellaneous Union, New South Wales Branch, which is the transitionally recognised union. Mr Sey instructed the union official he spoke with to file an unfair dismissal application. He rang that person again on 1 December 2010 to enquire as to whether he had filed the application. He was informed he had not and there was some discussion about the provision of additional documentation. Mr Sey again contacted that official on 3 December and was informed that the application had not been filed and the union would not be doing so. It appears the reason was based on discussions the official had with SNP however Mr Sey did not know the detail of those discussions. He was unhappy with the union. He then ascertained what he needed to do to himself and completed his s.394 application on 7 December 2010 and sent it to Fair Work Australia by express post on that day. It was received the following day. The delay is short and is fully explained by the above facts.

[7] The applicant first became aware of his dismissal on 22 November 2010 when he received a letter from SNP informing him of the termination of this employment effective that date. The matters I have already referred to in paragraph 6 show that the applicant has been diligent in the manner in which he has prosecuted his s.394 application. There is no evidence of him contacting his employer at any time between receiving the letter of termination and the filing of his s.394 application.

[8] In relation to the merits of the application, at the very least, it appears the applicant has an arguable case his dismissal was harsh, unjust or unreasonable. I should also here note that SNP completed an employer response form which is dated 17 December 2010. I note from the file there is no record of it being received on or about that time. It appears to have been first received on 11 January 2011. It asserts the applicant had abandoned his employment. As SNP did not file any submissions in accordance with the directions, nor appear before me in the hearing, I am not persuaded to place any weight on this assertion. In any event, I should indicate that as the applicant says certain correspondence SNP says it sent to him was not received I would not be able at this stage to make any other finding with respect to the consideration of the merits of the s.394 application.

[9] Nothing was said about either s.394(3)(d) or s.394(3)(f). These were not considerations which weighed either for or against extending time. Given the short delay in filing his application it is unlikely that would be a significant factor prejudicial to SNP.

[10] I was persuaded that in this application exceptional circumstances existed justifying an extension of time for the lodging of the s.394 application to 8 December 2010. I will today issue an order extending the time for filing accordingly.

SENIOR DEPUTY PRESIDENT

Appearances:

A. Sey on his own behalf.

Hearing details:

2011.

Sydney:

May 13.

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