Benjamin Webb v Briztow Pty Ltd T/A the Ready Towing Group

[2012] FWA 7840

[2012] FWA 7840

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Webb
v
Briztow Pty Ltd T/A The Ready Towing Group
(U2012/10632)

COMMISSIONER ROE MELBOURNE, 11 SEPTEMBER 2012

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Benjamin Webb (the Applicant) in respect of dismissal by Briztow Pty Ltd T/A The Ready Towing Group (the Respondent).

[2] At the conclusion of the hearing I decided to reject the application for extension of time. This is an edited version of the reasons given on transcript in Brisbane on 10 September 2012.

[3] The Application was lodged on 15 June 2012. The Applicant says that he posted the Application on 14 June 2012 by registered post. It is not in contest that the Applicant was dismissed on 29 May 2012 and was advised of the termination on that day. The Respondent is not a small business employer and the Applicant was employed by the Respondent for a little more than one year.

[4] The Applicant was dismissed at a meeting for failure to adhere to the Respondent’s safe loading procedures. The Applicant says that he was on WorkCover at the time and restricted to light duties.

[5] The Application was 3 days out of time.

[6] The Respondent agreed to participate in a conciliation conference in an attempt to resolve the matter but the Applicant failed to attend the conference.

[7] The Applicant refers to the following information prominently displayed on the FWA website:

“An unfair dismissal application must be lodged within 14 days of the dismissal coming into effect. Fair Work Australia may accept a late application but only in exceptional circumstances.”

[8] The Applicant says that this does not specify if they are referring to calendar days or business days. The Applicant says that the Application was lodged within 14 business days. The Applicant says that he lodged the Application at the time he did because some time prior to lodging the Application he had gone to the website and determined that he had 14 business days in which to make the Application. The Applicant says his application is not out of time because it is lodged within 14 business days. I am satisfied that the legislation is referring to calendar days, not business days. If business days was meant then the legislation and the website information would specify business days. In the absence of specific reference to business days, it is clear that it is a reference to calendar days.

[9] Section 394(2) of the Fair Work Act 2009 (the Act) provides:

“(2) [Standard time limit] The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[10] Subsection 394(3) provides:

“(3) [Extended time limit] 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.”

[11] I am satisfied in respect to criteria in Section 394(3)(b)-(f) that:

• On his own submission the Applicant was aware of the alleged dismissal on the day that it took place.



• The Applicant did not take any action to dispute the dismissal until the filing of the Application, other than work undertaking in preparing the Application.



• There is no prejudice beyond the normal to the employer if the application for extension of time is granted given the relatively short period. The relevant information would still be available.



• The Applicant disputes the validity of the reasons given for termination. I can conclude from the material before me that the Application is not without merit. However, without hearing the evidence I am unable to evaluate the strength of the case. I have not had the benefit of all of the evidence. I therefore make no conclusions about the merits of the case except to observe that on the material before me the case is not without merit.



• There are no other persons of which I am aware in a similar position.

[12] The most relevant consideration in these circumstances is the criterion in Section 394(3)(a); that is, the reasons for delay. I am not satisfied that the reasons for delay constitute exceptional circumstances either by themselves or in combination with the consideration of the other factors set out above.

[13] There is no suggestion of incapacity which prevented the making of the Application.

[14] Ignorance of the time limit is not an exceptional circumstance.

[15] Taking all those matters into consideration which are specified in section 394(3) of the Act, I cannot find that there are exceptional circumstances which would justify me granting the extension of time for the application. I refuse the application for an extension of time in this matter and therefore the Applicant is unable to further pursue this particular application. The Section 394 Application for unfair dismissal remedy is dismissed. The matter is now concluded.

COMMISSIONER

Hearing details:

2012

Brisbane

September 10

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