Bradley Vidich v ATM Enterprises Pty Ltd

[2014] FWC 7957

[2014] FWC 7957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Vidich
v
ATM Enterprises Pty Ltd
(U2014/12084)

COMMISSIONER WILLIAMS PERTH, 12 NOVEMBER 2014

Termination of employment - extension of time.

[1] Mr Brad Vidich (Mr Vidich or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is ATM Enterprises Pty Ltd (the respondent).

[2] Mr Vidich was dismissed on 2 May 2014. The application was made on 28 August 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 section 394 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] Submissions have been provided by Mr Vidich regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] On his application Mr Vidich acknowledged that he was making the application more than 21 days after his dismissal had taken effect and said that this was because:

“The Case was in the process of a hearing W.A.I.R.C.

Refer to W.A.I.R.C. Commissioner S J Kenner 14-8-14.”

[7] In reply to a request for further information or submissions in support of extending time for him to make this application Mr Vidich has provided to the Commission copies of emails he has received from the Associate to Commissioner S J Kenner of the Western Australian Industrial Relations Commission (WAIRC).

[8] The first of these is dated 29 July 2014 and reads:

“Dear Mr Vidich,

As discussed at today's conference, please find the Fair Work Commission’s details as follows:...”

[9] The email then provides a hyperlink to the Commission’s website and a page dealing with unfair dismissal applications.

[10] The email continued with the telephone number, the postal address and the physical address for the Commission in Perth. I note that the Commission and the WAIRC are located in the same building in Perth.

[11] On 14 August 2014 the Associate to Commissioner S J Kenner of the WAIRC sent a further email this time to both parties. The second paragraph of that email relevantly says:

“Mr Vidich, I refer to our telephone conversation this morning. If you do not intend to pursue a Fair Work Commission claim, and given on the face of it, it appears that the Industrial Relations Commission does not have jurisdiction to deal with your claim, the next step is for the Industrial Relations Commission to list the matter for a show cause hearing (for want of jurisdiction). Can you please advise as to your intention?”

[12] It is clear from these communications that on 29 July 2014, both verbally and in writing, the WAIRC had suggested to Mr Vidich that he should consider making an application to the Commission and further on 14 August 2014 had explained that it appeared the WAIRC did not have jurisdiction to deal with his claim and asking whether he intended to pursue his claim with the Commission.

[13] Mr Vidich has not explained what occurred or what he did after receiving these emails from the WAIRC. All that is known is that two weeks after the second email on 28 August 2014 he made this application.

[14] In the right circumstances I accept an employee who has been dismissed and has promptly made a claim to the WAIRC for unfair dismissal and who having been advised they are in the wrong jurisdiction promptly makes an application to the Commission can often be held to have an acceptable explanation for the delay in making their application to this Commission. However that is not the case in these circumstances.

[15] On the evidence before the Commission Mr Vidich should have appreciated his claim should properly have been made in the Commission arguably as early as 29 July 2014 but most definitely by 14 August 2014. So at best Mr Vidich has an acceptable reason for the delay up to these dates but not beyond 14 August 2014. There is no explanation for the further 14 days delay in making this application between 14 August and 28 August 2014 let alone an acceptable explanation for this delay.

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

[16] The applicant became aware of the dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[17] The applicant disputed his dismissal by making application for unfair dismissal to the WAIRC.

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

[18] 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

[19] There is limited information regarding the merits of Mr Vidich’s application.

[20] It seems he agrees that he argued with his employer but explains that this is not a stackable offence. The employer’s response however asserts that what occurred was an altercation between the applicant and his Supervisor initially on the shop floor and then in the Manager’s office and that Mr Vidich’s behaviour was confrontational, aggressive, abusive and intimidating.

[21] Which of the party’s view of these events is an objectively correct characterisation of what occurred cannot be determined in this extension of time matter. Consequently the merits or otherwise of Mr Vidich’s application are a neutral consideration in deciding whether or not an extension of time should be allowed for him to make this application.

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

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

Conclusion

[23] 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.

[24] I have considered the information provided by Mr Vidich. In this case there is an acceptable reason for only part of the delay in making the application with no explanation for the final two weeks of the delay. There is no basis for finding in this instance that there where exceptional circumstances.

[25] 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.

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

COMMISSIONER

Final written submissions:

Applicant, 19 September 2014.

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<Price code A, PR557548>