Anthony O'Dea v Downer EDI Pty Ltd T/A Downer Mouchel

[2014] FWC 9085

[2014] FWC 9085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony O’Dea
v
Downer EDI Pty Ltd T/A Downer Mouchel
(U2014/14350)

COMMISSIONER WILLIAMS PERTH, 17 DECEMBER 2014

Termination of employment - extension of time.

[1] Mr Anthony O’Dea (Mr O’Dea or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Downer EDI Pty Ltd T/A a Downer Mouchel (the respondent).

[2] Mr O’Dea was dismissed on 12 September 2014. The application was made on 16 October 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.”

[5] The applicant’s representative has provided a detailed submission in support of an application to extend the time to make this application. The respondent has provided a response opposing the Commission extending time.

Are there exceptional circumstances?

The reason for the delay

[6] The applicant says he attended a performance improvement meeting on 10 September 2014 and that two days prior to this he had been advised by his union representatives that he was only likely to be stood down as a Leading Hand, given a written warning or both.

[7] On 12 September 2014 at the meeting with the employer’s representatives the applicant was given a letter of termination of employment which was effective immediately.

[8] The same day the applicant advised the union representatives of his termination and was advised that the representative was going to Bali for a week and would assist the applicant on his return.

[9] On 19 September 2014 the applicant rang the union’s representative but could not speak to him so left a message. Seven days later on 26 September having had no further contact from the union the applicant rang again but was not able to speak to his representative and left a second message.

[10] Another four days later, on 30 September 2014, the union still had not returned the applicant’s phone calls so the applicant rang the union again. On this occasion the applicant spoke directly with his union representative who informed him that there was not really anything they could do for him.

[11] The applicant says that he was not advised by the union there was a time limit in which to make an application.

[12] Also on the 30 September 2014 Mr O’Dea rang a business called Australian Dismissal Services and was told that somebody would ring him back but this never occurred.

[13] On 2 October 2014 the applicant contacted Workcover, although it is not explained why he rang WorkCover, and was told that the person who could assist was not available and would call him back but the applicant never received a return phone call.

[14] I note that the 21 day time limit to make this application ended on 3 October 2014.

[15] On 6 October 2014 the applicant had an appointment with his doctor who advised him that he should seek legal advice and provided him with the contact details of the law firm Slater and Gordon.

[16] On 7 October 2014 the applicant contacted Slater and Gordon who advised that he was outside of the 21 day time period to file an unfair dismissal remedy application.

[17] The applicant says that having been made aware of the time limit he then contacted the Employment Law Centre of Western Autralia, the Law Society of Western Australia, the Commission, MDS Legal and Lawson and Atkinson.

[18] On 8 October 2014 the applicant made an appointment and engaged the services of his current legal representatives.

[19] Eight days later on 16 October 2014 this application was made on his behalf by his legal representatives.

[20] It is submitted on behalf of Mr O’Dea that he had at all times relied on his union for assistance and was reliant on the union’s promises to assist him because he was attending various medical appointments and because the applicant’s stepdaughter also had to attend regular medical appointments accompanied by the applicant.

[21] Considering the various explanations for the delay in making this application I can accept that having been led to believe by his union representatives that the union would represent him the applicant was entitled to wait a reasonable period of time for them to act on his behalf. There is some argument perhaps that the applicant did not do enough to ensure his union representative was pursuing the matter on his behalf however it is clear that by 30 September 2014 he was fully aware that the union would not assist him with his dismissal. This was three days inside the 21 day time period to make an application.

[22] Having been advised by the union that it would not assist him the applicant unsuccessfully contacted Australian Dismissal Services on 30 September 2014 and WorkCover on 2 October 2014 assumedly to get advice or assistance. The applicant however did nothing further to pursue an application on his own behalf until he rang Slater and Gordon on 7 October 2014 following chance advice from his doctor the day before.

[23] Having engaged his current legal representatives on 8 October 2014 there is no explanation as to the delay of a further eight days in finally making this application.

[24] Considering the various explanations for the delay in making this application there is I accept an acceptable explanation for some of the delay in that up until 30 September 2014 the applicant reasonably believed the union was going to pursue an application on his behalf.

[25] Separately it is well established that the fact that someone such as the applicant was unaware of the 21 day time limit is not an acceptable reason for delay in making an application.

[26] Accepting that Mr O’Dea needed to attend some medical appointments both for himself and for his stepdaughter this did not preclude him from making this application himself or otherwise obtaining assistance to have an application made on his behalf. There is not sufficient information before the Commission to suggest that these medical appointments were so time-consuming that Mr O’Dea was actually prevented from doing this. Indeed the applicants own submissions indicate that he did from time to time actively contact different organisations assumedly seeking advice or assistance notwithstanding his need to attend these appointments.

[27] In conclusion whilst there is an acceptable reason for part of the delay in making this application I am not satisfied that there are acceptable reasons for all of the delay in this instance.

Whether the person first became aware of the dismissal after it had taken effect

[28] Mr O’Dea was made aware of his dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[29] The applicant has not otherwise sought to dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[30] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[31] The parties have strongly different views as to the merits of the application and indeed about the circumstances surrounding Mr O’Dea’s dismissal. For the purposes of the extension of time issue it is not appropriate for the Commission to embark upon a full enquiry into the merits of the substantive application.

[32] Accordingly in this instance the merits of the substantive application is a neutral factor for the extension of time matter.

Fairness as between the person and other persons in a similar position

[33] This is not a relevant factor in this matter.

Conclusion

[34] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[35] I have considered the information provided and the submissions. In this case there are not acceptable reasons for the full period of delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[36] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[37] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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