Beau Delaine v John Devilee Refrigeration Pty Ltd T/A Devilee's Air Conditioning & Refrigeration

[2014] FWC 3375

[2014] FWC 3375

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Beau Delaine
v
John Devilee Refrigeration Pty Ltd T/A Devilee’s Air Conditioning & Refrigeration
(U2014/6758)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 MAY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 21 May 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 11 March 2014 Mr Delaine lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with John Devilee Refrigeration Pty Ltd T/A Devilee’s Air Conditioning & Refrigeration (Devilee’s).

[3] In that application, Mr Delaine advised that his dismissal took effect on 1 April 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“It has been 22 days.

I had to wait for reply email about letter of Dismissal as well as 2.5 weeks to hear about long service leave before I decided to take action.

I have also been away for Easter without Reception for a week.” 1

[4] The application was referred to me for consideration. On 28 April 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 21 May 2014. Mr Delaine was required to provide a witness statement and a copy of any document relied upon, by 14 May 2014.

[5] An Employer’s Response (Form F3) to the application was received on 6 May 2014. That response confirmed that Devilee’s objected to an extension of time.

[6] Mr Delaine did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to Devilee’s by 14 May 2014.

[7] The extension of time issue was considered through a telephone conference on 21 May 2014. A sound file record of this conference was kept. Mr Delaine attended this conference. Devilee’s was represented by Mr Devilee, as its Managing Director.

[8] Mr Delaine advised that he had not properly read the correspondence of 28 April 2014 such that he understood that he was required to provide material in advance of this conference until recently, when he then tried to telephone the FWC. Mr Delaine was uncertain about the number that he then telephoned and I have concluded that this was not the telephone number provided in the 28 April 2014 correspondence.

[9] Mr Delaine provided additional information with respect to the reasons for the delay. I have taken all of the information he has provided into account in considering the extension of time issue.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged one day outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Delaine’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Mr Delaine has provided does not adequately explain why the application could not have been lodged within time. It may well be the case that Mr Delaine waited for some time to receive information about his long service leave entitlement and that he went away over the Easter period. Additionally, I understand Mr Delaine’s advice that he contacted the FWC on 16 April 2014 by telephone to enquire about remedies available to him but that he agrees that he provided an incorrect termination of employment date and was told that, at that time, his application was out of time. I understand that it was not until Mr Delaine returned from his Easter holiday that he realised that 21 days since the termination of his employment had not elapsed. Mr Delaine’s advice is that some days then elapsed as he arranged to lodge the application. I am not satisfied that Mr Delaine has established to me a satisfactory reason for the failure to lodge the application within the specified time limit.

[14] On the information provided in Mr Delaine’s application, I am satisfied that he was made aware of the termination of employment decision on 1 April 2014 which I have taken as the date that termination of employment took effect.

[15] Again, from the information provided by Mr Delaine I am not satisfied that he challenged the termination of his employment other than through the late lodgement of this application.

[16] The granting of an extension of time would prejudice the respondent in this matter.

[17] In terms of the merits of the application, I am not in a position to make a definitive assessment and have regarded this as a neutral factor in the consideration of the extension of time request.

[18] Considerations of fairness relative to persons in similar circumstances to Mr Delaine do not support an extension of time.

Conclusion

[19] For the reasons I have set out above, Mr Delaine’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR550859) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

B Delaine on his own behalf.

P Devilee representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

May 21.

 1   Form F2, para 1.4

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