Anthony Duncan v South West Freight

[2017] FWC 4228

[2017] FWC 4228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Anthony Duncan
v
South West Freight
(C2017/3835)

COMMISSIONER PLATT ADELAIDE, 17 AUGUST 2017

Application to deal with contraventions involving dismissal – extension of time – application lodged within time.

[1] Mr Anthony Duncan has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by South West Freight Pty Ltd (South West) on 21 June 2017 in contravention of the general protections provisions of the Act.

[2] The application was lodged on 13 July 2017.

[3] Mr Duncan’s application indicated, at question 1.4, that he was making the application within 21 calendar days of the dismissal taking effect.

[4] South West filed a F8A Employer Response on 21 July 2017 but did not identify any jurisdictional objection. The Commission identified the out of time issue.

[5] On 28 July 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 14 August 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Mr Duncan and South West were directed to provide an outline of argument by 4 August 2017.

[6] Mr Duncan provided a written submission summarised as follows:

● He contacted Justice Connect for legal advice but had not received a response before the end of the 21 days and therefore lodged the application as soon as he could.
● He found it difficult to access the relevant Commission application form and to complete and lodge it.
● The application was only lodged 8 minutes out of time - at 12:08am on 13 July 2017. This was based on the dismissal occurring on 21 June 2017.
● There would be no prejudice caused to the respondent because of the delay.

[7] South West filed a written submission summarised as follows:

● Mr Duncan contacted them by telephone on 21 June 2017 and advised that he would resign when he returned to Mt Gambier on 22 June 2017.
● On 22 June 2017, Mr Duncan informed South West that he was rescinding his resignation. Mr Duncan was advised that his resignation was accepted and that he could finish as he had stated he would.

[8] A hearing was conducted by way of telephone conference on 14 August 2017. Mr Duncan did not attend. South West was represented by Mr Darren Earl.

[9] At the telephone conference, South West relied on the submissions filed.

[10] Mr Earl confirmed that Mr Duncan was in Melbourne when he rang on 21 June 2017, that he had to drive the vehicle back to the depot and that his employment ceased on 22 June 2017 when he returned with the truck.

[11] I find that the dismissal occurred on 22 June 2017 and, accordingly, the application was lodged within 21 days of the dismissal and no extension of time is required.

[12] An Order¹ reflecting this decision will be issued, and the application will be referred for conciliation.

COMMISSIONER

Appearances (by telephone):

No appearance on behalf ofthe Applicant.

Mr D.Earl on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

August 14.

1 PR595383

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<Price code A, PR595336>