Charles Choi v Zurich Bay Holdings Pty Ltd T/A Mine Site Construction Services

[2013] FWC 6420

[2013] FWC 6420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charles Choi
v
Zurich Bay Holdings Pty Ltd T/A Mine Site Construction Services
(U2013/10068)

COMMISSIONER WILLIAMS PERTH, 3 SEPTEMBER 2013

Termination of employment - extension of time.

[1] The applicant in this matter, Mr Charles Choi (the applicant), has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Zurich Bay Holdings Pty Ltd T/A Mine Site Construction Services (the respondent).

[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.

[3] The application states that the applicant was notified of his dismissal on 27 March 2013 and that the date the dismissal took effect was Monday, 29 April 2013, however I note in submissions made by the applicant he states that his last day of employment was Friday, 26 April 2013. The application was made on 31 May 2013.

[4] The application has been lodged more than 21 days after the dismissal took effect and so does not satisfy the requirements of section 394 (2) of the Act. For the application to satisfy the statutory time limit it was required to have been made either by 17 May 2013 or at the latest by 20 May 2013 dependent upon the date the dismissal took effect.

[5] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made but 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.”

[6] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

Are there are exceptional circumstances?

The reason for the delay

[7] The applicant submits that the reason for his application being made out of time was because the Chief Financial Officer of the respondent, Mr Bell, kept telling him that he would provide the applicant with a good personal reference letter to help him get another job however this promise was never met. The applicant says that week after week Mr Bell kept telling him that he would do this but the reference was never provided.

[8] The applicant explains that he was advised on 27 March 2013 that his position was terminated by reason of redundancy. The applicant says that the same day he contacted the Fair Work hotline and afterwards he advised Mr Bell that the redundancy, in the applicant’s opinion, was not legitimate.

[9] The applicant says Mr Bell said the decision will not be changed but that he would give the applicant a good reference letter.

[10] The applicant says that throughout the last month of his employment, April 2013, he followed up with Mr Bell regarding the reference letter but it was never provided to him.

[11] The applicant says that on the last day of his employment, 26 April 2013, he asked again regarding the reference letter and Mr Bell told him that he would send it to him by email.

[12] The applicant did not receive a reference letter and on 9 May 2013 he says he followed up with an email to Mr Bell regarding the reference letter and then called a few times during the month of May 2013 but Mr Bell did not get back to him and he has not received the reference letter.

[13] In the applicant’s own words:

“The reason that I did not submit a claim on time is because I cannot afford to have no job, so for me, a good reference letter mains that I will have a better chance of getting a job, and if I submit a claim to fair work. In my opinion, I don’t believe they will give me a good reference in the future.

The fact that the CFO kept telling me he is preparing the letter, actually creating false hope that made me feel they will help me out and if I submit a claim, I will lose their help.” (sic)

[14] Considering the applicant’s reasons for the delay in making this application I accept that what occurred explains the full period of the delay in making this application. The circumstances were that a full month before the applicant’s employment ended, the day he was given notice of his dismissal, he took advice from the Fair Work phone helpline about his situation and at that time believed the dismissal was not a legitimate redundancy. What occurred then was that the applicant deliberately decided to delay making an application to the Commission because he believed it was likely that making an application would prevent the respondent providing him with a positive reference. The applicant then repeatedly sought a reference from the respondent but never received one. In summary the applicant made a conscious decision not to make this application earlier for his own reasons. Whilst the applicant is understandably aggrieved because Mr Bell apparently agreed to provide him with a reference but never did so, the applicant’s deliberate decision to delay making this application for his own reasons is not an acceptable explanation for that delay.

Any action taken by the person to dispute the dismissal

[15] Other than advising the respondent’s Chief Financial Officer that he did not believe his redundancy was legitimate the applicant has not taken any action to dispute the dismissal beyond the making of this application.

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

[16] 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

[17] The applicant argues that his dismissal was not a case of genuine redundancy. He believes the duties he had been performing still need to be performed by someone and this in part is demonstrated by the fact that he was required to provide a handover of his work before he departed and that the respondent did not make a reasonable attempt to redeploy him.

[18] The respondent’s submissions in reply says that the redundancy was due to a downturn in work and that it is standard practice to document a redundant employees tasks and for them to hand over any sundry tasks to other staff before their employment ends, for these to be completed. The respondent says the invoicing the applicant was doing was minimal due to the partial closure of part of the business.

[19] The question of whether or not the dismissal of the applicant was a genuine redundancy is not to be decided as part of this decision which is limited to determining whether an extension of time to make the application should be allowed. It would only be after a full hearing of the substantive application that this question would able to be answered and for the purposes of the extension of time question the merit of the application is neutral.

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

[20] There is no evidence regarding persons in a similar position.

Conclusion

[21] 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. In this case the reason for the delay was the deliberate choice the applicant made to not make this application until after he had obtained a favourable reference from the respondent. The applicant a month prior to his dismissal was apparently considering making an application. How long the applicant was willing to wait for a reference after his employment ended was his choice. As events unfolded no reference was received. The timing of the making of the application was decided by the applicant himself.

[22] The legislation however does not allow applicant’s to choose their own timing when making applications, rather the parliament has decided that applications for unfair dismissal remedies should be made within 21 days of a dismissal unless there are exceptional circumstances.

[23] In this case I do not accept that what occurred amounts to exceptional circumstances.

[24] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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