Brett Archer v AAM Group

[2015] FWC 1622

[2015] FWC 1622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Archer
v
AAM Group
(U2015/225)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Brett Archer alleged that the termination of his employment by AAM Group on 26 December 2014 was unfair.

[2] His unfair dismissal application lodged on 19 January 2015 was not made within 21 days of the date of the dismissal.

[3] In his application Mr Archer said that his dismissal did not take effect until 27 December 2014. Mr Archer attached a letter to his application which was dated 24 November 2014 which advised that his employment was terminated with effect on 26 December 2014 and he was paid five weeks’ pay in lieu of notice. In his application, Mr Archer provided no explanation of why his application was not lodged within 21 days. To the contrary, Mr Archer said it was lodged within 21 days. If the termination of Mr Archer’s employment took effect on 26 December 2014, he was required to lodge his application by 16 January 2015.

[4] On 28 January 2015, I caused a letter to be sent to Mr Archer advising that his application was out of time and he was provided with 14 days to file material in support of an extension of time. Mr Archer was also advised that he could request a hearing. Mr Archer did not respond to that correspondence and on 13 February 2015 Mr Archer was advised that he could have until 20 February 2015 to reply. He was advised that if no response was received I would consider the matter on the papers.

[5] Mr Archer has not responded to any correspondence from the Commission.

[6] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Are there exceptional circumstances?

(a) the reason for the delay;

[7] Mr Archer has not explained the delay in lodging the application. This weighs against granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[8] Mr Archer advised that he was notified of the dismissal on 24 November 2014. As it took effect on 26 December 2014 he had the full 21 days to lodge his application. This weighs against granting an extension of time.

(c) any action taken by the person to dispute the dismissal;

[9] No material was provided in relation to this criteria.

(d) prejudice to the employer (including prejudice caused by the delay);

[10] This criterion is neutral.

(e) the merits of the application;

[11] I am unable to make any assessment of the merits. This criterion is neutral.

(f) fairness as between the person and other persons in a similar position.

[12] No submissions were made on this criterion.

Conclusion

[13] Mr Archer has made no submissions as to the existence of exceptional circumstances. I am satisfied that he has been provided with an opportunity to present a case to the Commission but he has not done so. Further Mr Archer has not asked to be heard in relation to the application. Accordingly I am unable to find that there are exceptional circumstances and therefore Mr Archer’s application is dismissed.

DEPUTY PRESIDENT

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