Bobby Taneski v P.P.K Demolition Pty Ltd

[2015] FWC 5196

[2015] FWC 5196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bobby Taneski
v
P.P.K Demolition Pty Ltd
(U2015/7502)

COMMISSIONER RYAN MELBOURNE, 4 AUGUST 2015

Application for relief from unfair dismissal – jurisdictional - extension of time.

[1] On 11 May 2015, Mr Bobby Taneski (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant asserts that he was unfairly dismissed from his employment with P.P.K Demolition Pty Ltd (the Respondent). The Applicant states that his dismissal took effect on 16 April 2015 when the Respondent made his position redundant. The application was therefore lodged 4 days outside the 21 days allowed by s.394(2)(a) of the Act.

[2] The Respondent, through its representative, the Master Builders Association of Victoria (MBAV), identified a number of jurisdictional objections in its Form F3 response: the dismissal was a case of genuine redundancy; the dismissal was consistent with the Small Business Fair Dismissal Code and the application was not filed within the requisite period.

[3] The matter was referred for a jurisdictional hearing in relation to the extension of time.

[4] The jurisdictional objection was originally listed for 26 June 2015 and directions were issued to the parties for the filing and service of material in relation to the extension of time. The Applicant was to file his material by 1 June 2015. The Respondent was to file its material by 15 June 2015.

[5] The Applicant made no appearance at the hearing on 26 June 2015. He contacted the Registry around the commencement time of the hearing to advise of his inability to attend due to carer’s responsibilities.

[6] On 26 June 2015 my Associate wrote to the parties requiring that each party advise the Commission by 29 June 2015 whether or not they would consent to the determination of the extension of time on the papers.

[7] On 30 June 2015 the Applicant contacted my chambers to acknowledge receipt of the correspondence and in that conversation he consented to the determination of the extension of the time on the papers. The Applicant also advised that he would be filing that day, by hand delivering to the Commission, additional material in relation to the extension of time which he wanted the Commission to take into consideration. That material was not received by the Commission until 2 July 2015.

[8] I then provided the Respondent the opportunity to make reply submissions to the material filed by the Applicant on 2 July 2015.

[9] The Respondent filed reply submission on 15 July 2015.

Legislation

[10] Section 394(3) provides as follows:

"(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."

[11] Section 394(2)(b) permits the Commission to grant an applicant an extension of time in which to make an application for an unfair dismissal remedy but only if the Commission is satisfied that there are exceptional circumstances warranting an extension of time. A consideration of the existence of exceptional circumstances requires the Commission to take into account the criteria set out in s.394(3). Whether any single circumstance or set of circumstances is exceptional requires that the circumstances "must be out of the ordinary course, or unusual or special or uncommon but need not be unique, or unprecedented or very rare". 1

[12] I will deal with each of these factors contained in s.394(3) in turn.

Reason for the Delay in making the Unfair Dismissal application - s.394(3)(a)

[13] The Applicant contends that the reason for the delay in filing his application was due to him being misled by the Respondent into believing that he may be offered casual work with the Respondent following his termination and that it was only when he realised that this was not the case, that he then made the decision to file an application for remedy for unfair dismissal.

[14] The Applicant contends that he came to the realisation that the Respondent was not going to offer him any further work when he spoke to the foreman at the Respondent who told him that in a conversation he had with Mr Kalafatis that Mr Kalafatis had said “close the book on Bobby”. The Applicant stated in his original submissions that this conversation took place on 11 May and then in his further submissions he stated that it took place “8-9-10 May”.

When the Applicant first became aware of the dismissal - s.394(3)(b)

[15] It is clear that the Applicant first became aware of the dismissal on the day that the dismissal took effect. The Applicant was sent a text message by Mr Kalafatis on 16 April 2015 advising of the redundancy and subsequently attended a face to face meeting at the Respondent’s head office where Mr Kalafatis informed him of the decision taken to make his position redundant and the Applicant returned property of the Respondent and collected his own property from the Respondent.

[16] This criteria weighs against a finding that exceptional circumstances exist and favours the Respondent.

Any action taken by the Applicant to dispute the dismissal - s.394(3)(c)

[17] The Applicant did not make any attempts to dispute his dismissal until he came to the realisation that no work would be offered to him by the Respondent.

[18] The factor raised by s.394(3)(c) favours the Respondent.

Prejudice to the Respondent - s.394(3)(d)

[19] The Respondent does not contend that it will suffer any prejudice if an extension of time is granted to the Applicant to file his unfair dismissal application. The lack of prejudice to the Respondent means that this criteria does not weigh against a finding as to the existence of exceptional circumstances.

The merits of the application - s.394(3)(e)

[20] Whilst the Commission does not engage in any detailed consideration of the merits of an unfair dismissal application when considering an extension of time application some regard must be had to the merits of the unfair dismissal application as s.394(3)(e) requires it. In the present matter the merits of the Applicant’s unfair dismissal application cannot be considered even if an extension of time is granted until the initial matter of whether the dismissal is a case of a genuine redundancy is determined. So much is clear from the requirement of s.396.

[21] A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.  2

[22] It is not the case where the Applicant’s case is so highly meritorious that an extension of time would be granted even in the absence of no acceptable reason.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

[23] This criteria is not relevant in the present matter.

Are there exceptional circumstances - s.394(3)?

[24] I am convinced that the Respondent’s actions led to the Applicant forming the view that the Respondent might offer him casual work. However, an offer of casual work from the Respondent should not of itself have led to a conclusion by the Applicant that there had not been a termination of his employment and therefore that there was no need to seek a remedy for unfair dismissal if the Applicant considered the dismissal to be unfair.

[25] It is clear from the Applicant’s own submissions that he accepted that his position was terminated on 16 April 2015. The Applicant’s submissions around the issue of the reason for the delay suggests that what was in the Applicant’s mind was that he would wait to see if some offer of work would come his way so that perhaps he wouldn’t need to have to seek a remedy for unfair dismissal. It is apparent from the Applicant’s own material that he would not have challenged the dismissal on 16 April 2015 if casual work had been given to him by the Respondent. The challenge to the dismissal only arose after the Applicant was informed around 8-11 May 2015 that no casual work would be offered.

Conclusion

[26] Taking into account all the circumstances of this case and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act, I find that there are no exceptional circumstances which warrant me exercising my discretion pursuant to s.394(2)(b) and s.394(3) of the Act and therefore the application of Mr Taneski is dismissed and I order accordingly.

COMMISSIONER

 1   Nulty v Blue Star Group P/L[2011] FWAFB 975 at para 13.

 2   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

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