Barry Keatch v Ecot Pty Ltd T/A KCrown

[2014] FWC 8547

[2014] FWC 8547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Barry Keatch
v
Ecot Pty Ltd T/A KCrown
(C2014/1270)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 4 DECEMBER 2014

Application to deal with an unlawful termination dispute.

[1] On 17 July 2014, Mr Barry Keatch made an application under section 773 of the Fair Work Act 2009 (the Act) for a remedy with respect to an alleged unlawful termination. The applicant stated in his application that he was terminated on 13 June 2014. This means that his application is outside the time limit set out in s.774.

[2] The administrative arm of the Fair Work Commission served a copy of Mr Keatch’s application on the named respondent, Ecot Pty Ltd t/a KCrown on 18 July 2014.

[3] The respondent filed a response on 21 July 2014.

[4] On 30 July 2014, Mr Keatch filed a further application seeking to amend his original application - Application (No Specific Form Provided) - stating “under form nine, Victoria is not under this legislation”.

[5] The Commission in issuing a listing on 31 July 2014 said:-

The applicant has filed several forms. Only one application may be made, or an amendment sought. The applicant needs to clarify what application he is making and whether or not he needs an interpreter . . . . . . . .

[6] On 1 August 2014, Mr Keatch filed a third application a general protections application stating “I wish to amend my application for unlawful dismissal under form nine to form eight, as form nine does not cover Victoria”.

[7] The applicant’s documents were forwarded to the respondent on Friday 1 August 2014 and stated “any response from you is required by close of business on Tuesday 5 August 2014”.

[8] Following a conference held on 7 August 2014, the following directions were issued:-

Following the conference conducted earlier today, these Directions set out the dates by which the parties have agreed to file in the Commission and serve on the other party, materials in relation to the applicant’s request for an extension of time to file his application under s.774 of the Fair Work Act 2009 (the Act) and the Respondent’s objection to that application.

The Commission directs -

that, on or before close of business on Thursday 14 August 2014, the Applicant, Mr Keatch, shall serve on the Respondent, Ecot Pty Ltd T/A KCrown and file with the Fair Work Commission a letter setting out his reasons for an extension of time under section 774 of the Act.

that, on or before close of business on Thursday 21 August 2014, Ecot Pty Ltd T/A KCrown shall serve on the Applicant and file with the Fair Work Commission a written response to the Applicant’s letter.

that, on or before close of business on Friday 22 August 2014, the Applicant shall serve on the Respondent and file with the Fair Work Commission any written reply.

[9] Neither party complied with the Directions.

[10] On 10 October 2014 further directions were issued giving the parties another opportunity to respond.

[11] On 13 October 214, the applicant sent an email:-

To whom it may concern, In regards to filing a complaint, or protest to the fairwork commission within the due date, was that on was still on workcover_care two, weeks after i was unlawfully dismissed . And regarded that the dismissal was not lawful, therefore did not lodge till such time as my work certificates ran out . plus there was an issue with law firms wanting more money to represent my case . I felt i did not want to throw anymore money into this case , as I had already lost money through time off work. Yours sincerely, Barry Keatch

[12] On 24 November 2014 the parties were given a further opportunity to put submissions when an email was sent to them stating that “It is proposed to determine this application in accordance with the requirements of the Fair Work Act 2009 on the basis of materials lodged with the Commission to date. Any person wishing to object may do so by close of business on Tuesday 25 November 2014.”

[13] Neither party responded.

Decision

[14] The original application is still on foot. I refuse to amend the application. There are no good grounds for so doing, and none were advanced. This leaves the question of an extension of time.

[15] Section 774 of the Act provides:

‘774 Time for application

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’

[16] The applicant has provided reasons for the delay (s.774(2)(a)). It is well established that ignorance of the law is not a satisfactory reason, and to the extent that the applicant claims this, this applies in the present matter. In any event, the explanations given are not satisfactory. There is no reason why an application could not be lodged within time notwithstanding the reasons given.

[17] The applicant has provided no material in relation to the action taken by him to dispute the termination (s.774(2)(b)). There appears to be little prejudice to the employer and certainly none claimed (s.774(2)(c)). It is not possible to deal with the merits beyond stating that this issue is neutral between the parties (s.774(1)(d)). Fairness between the person and other persons in a like position also appears to be neutral (s.774(2)(e)).

[18] Even if I were to amend the application, these reasons are in the alternative applicable to the amended application, and for these reasons the application should be refused.

[19] Overall I am not satisfied that there are exceptional circumstances warranting an order extending time. The application for extension of time is dismissed. An order is contained in PR558490.

DEPUTY PRESIDENT

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