Brian Harwood v Singh's Bulk Tankers Pty Ltd

[2015] FWC 5409

[2015] FWC 5409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Harwood
v
Singh’s Bulk Tankers Pty Ltd
(U2015/8461)

DEPUTY PRESIDENT WELLS LAUNCESTON, 7 AUGUST 2015

Application for relief from unfair dismissal– jurisdiction – whether to grant extension of time.

Introduction

[1] On 16 June 2015, Mr Brian Gregory Harwood made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the FW Act).

[2] Mr Harwood commenced employment as a driver with RM & ME Singh Pty Ltd on 29 July 2013, during which time, Mr Benjamin Singh was a Director and employee of the company. Mr Harwood commenced employment for Mr Singh with Singh’s Bulk Tankers Pty Ltd (the employer) on 1 November 2013. There was no transmission of business affected between RM & ME Singh Pty Ltd and Singh’s Bulk Tankers Pty Ltd.

[3] Mr Harwood stated he received his termination via email late in the afternoon on 22 April 2015. The dismissal took effect that day. The unfair dismissal application was not made within 21 days of the date of the dismissal as required in s.394(2)(a).

[4] Pursuant to s.394(2)(b) the Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether exceptional circumstances exist, the Commission must have regard to certain matters as contained in s.394(3). Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time. Mr Harwood was directed to provide specific submissions¹ and evidence in relation to the matters to be considered in the extension of time matter.

[5] It should be noted that at the time of termination, Mr Harwood was living and working in Queensland. At the time of lodging his unfair dismissal application, Mr Harwood was living in Tasmania.

Do exceptional circumstances exist?

[6] The Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) The reason for the delay

[7] Mr Harwood was terminated on Wednesday 22 April 2015. Accordingly, Mr Harwood would have to have lodged his unfair dismissal application with the Commission by Wednesday 13 May 2015. The application was filed on 16 June 2015, some 34 days late.

[8] Mr Harwood’s evidence was that two days prior to his termination he made an application with the Fair Work Ombudsman (FWO) to deal with what he alleged were underpayment of wages and allowances contained within the Road Transport (Long Distance Operations) Award 2010 (MA000039) (the Award). This complaint involved discussions with a FWO representative and arrangements were made for mediation between the parties on 18 May 2015. This mediation did not eventuate.

[9] Mr Harwood also made enquiries with the Small Claims Courts of Queensland and stated he found that this was not the correct jurisdiction to deal with his dispute with Singh’s Bulk Tankers Pty Ltd.

[10] Approximately one week after his dismissal, Mr Harwood made enquiries with the Australian Taxation Office (ATO) in relation to his wage rates and unpaid superannuation, a matter which he submitted is now under investigation by the ATO.

[11] Mr Harwood provided no evidence of any other reason for the delay (for example any personal or family emergencies or health issues relating to him or his immediate family), or any other matter that would have precluded him from lodging his unfair dismissal application with the Commission.

[12] It is clear that Mr Harwood was able to make enquiries with the ATO and the Small Claims Court of Queensland following his termination and to continue with his complaint to the FWO. I have concluded that Mr Harwood was physically and mentally capable of lodging an application with the Commission at that time. Whilst Mr Harwood stated he was unaware of a time limit and thought that the FWO could assist him with his dismissal, he confirmed in evidence that his complaint to the FWO related to underpayment of wages and not to a possible unfair dismissal. Ignorance of the statutory time limit for lodgement of an application under s.394 is not an exceptional circumstance. I conclude that Mr Harwood has not provided a satisfactory explanation for the delay of 34 days in making the application.

[13] The lack of a satisfactory explanation as to the reason for the delay weighs against the granting of an extension of time.

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

[14] As discussed earlier in this decision, Mr Harwood was aware on 22 April 2015 that the dismissal had taken effect. This weighs against the granting of an extension of time.

(c) Any action taken by the person to dispute the dismissal

[15] Mr Harwood, whilst making enquiries as to underpayment of wages and allowances, did not indicate to the employer that he was intending to make an unfair dismissal application.

[16] This criterion weighs against the granting of an extension of time.

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

[17] Mr Harwood submitted that as he was not seeking reinstatement to his former position there was no prejudice to the employer. The employer submitted there was no specific prejudice to them. This criterion weighs in favour of an extension of time.

(e) The merits of the application

[18] Mr Harwood disputed that he was the subject of many of the counselling or warnings which the employer submitted were provided. Mr Harwood stated he was dismissed due to his enquiries about underpayment of wages, in breach of the Award. Conversely, the employer submitted that Mr Harwood’s employment was terminated for serious misconduct relating to occupational health and safety procedures and that the dismissal was effected in accordance with the Small Business Fair Dismissal Code.

[19] There has not been a full hearing on the facts which are in dispute, therefore no findings about the merits of the case can be made. This criterion is neutral.

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

[20] Neither party made submissions that were on point in relation to this criterion. I consider this criterion to be neutral in all the circumstances of this case.

Conclusion

[21] There was evidence and submissions filed in this matter which do not directly relate to the jurisdictional matter to be decided. Where this material provides context to the evidence or submissions to be considered as to jurisdiction, I have had regard for them.

[22] Mr Harwood was terminated on Wednesday 22 April 2015, meaning his 21 day timeframe for lodgement of his unfair dismissal application expired on Wednesday 13 May 2015. Accordingly, the application which was lodged on Tuesday 16 June 2015, was 34 days out of time.

[23] Mr Harwood was aware of this termination at the time it was effected and did not provide a satisfactory explanation for the delay to the lodgement of the application. The evidence put to the Commission by Mr Harwood do not support a finding that exceptional circumstances exist, such as to warrant the granting of an extension of time.

[24] On balance I conclude that the determinations I have made on all of the criteria under s.394(3) do not provide for exceptional circumstances and do not weigh in favour of granting the application. Therefore Mr Harwood’s application for an extension of time is dismissed and his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B Harwood, on his own behalf

Mr B Singh, for the Respondent

Hearing details:

Launceston

2015

4 August

Final written submissions:

Submission by Applicant: 7 July 2015

Submission by Respondent: 15 July 2015

¹ Exhibit A1 – Submissions of Brian Harwood, dated 3 August 2015

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