Christopher Jenkins v Westside Auto Wholesale

[2014] FWC 6783

[2014] FWC 6783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Jenkins
v
Westside Auto Wholesale
(U2014/11590)

COMMISSIONER WILLIAMS PERTH, 30 SEPTEMBER 2014

Termination of employment - extension of time.

[1] The applicant in this matter Mr Christopher Allan Jenkins (Mr Jenkins or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Westside Auto Wholesale (Westside).

[2] Mr Jenkins was dismissed on 8 July 2014 and his dismissal took effect the same day. Mr Jenkins made his application 11 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 grant 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 s. 394 of the Act 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 Jenkins regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] Mr Jenkins explains that he was unaware that there was a time limit for making these applications and that in addition because he is 19 years of age and new to the workforce he was apprehensive about upsetting anybody by proceeding with his claim.

[7] With respect to these reasons for Mr Jenkins delay in making this application it is well established in the Commission’s prior decisions that the fact an applicant is not aware that the legislation requires these applications to be made within 21 days of the dismissal is not an acceptable reason for the delay in making the application. Unfortunately many people are in the same situation as Mr Jenkins in this regard.

[8] With respect to Mr Jenkins’ age it is easy to understand that the younger a person is the less likely they are to be aware of their rights with respect to their employment. Unfortunately however the Parliament in making the legislation has not provided different time limits for people of different ages nor has it provided different time limits based on whether the employee who has been dismissed is new to the workforce or has been working for some time. These further reasons for Mr Jenkins’ delay in making his application are as a result not acceptable reasons.

[9] Whilst the Commission is sympathetic towards a young person in Mr Jenkins’ situation the reasons for his delay and the particular circumstances he found himself in are regrettably not unusual and are not reasons for delay that would support a conclusion that in this case there were exceptional circumstances.

Any action taken by the person to dispute the dismissal

[10] The applicant has not otherwise sought to dispute his dismissal.

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

[11] 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

[12] There is limited information regarding the merits of Mr Jenkins’ application.

[13] From Mr Jenkins’ account it seems he has been employed for many months in circumstances where he no longer held a drivers license and this gave no concern to his employer because his position did not require him to hold a drivers license. However after having been unsuccessful in passing the driving test to regain his licence he was told by his employer that his services were no longer required.

[14] On the face of this account it would seem the actions of Westside were unreasonable. However the Commission notes that at this point Westside have not been directed by the Commission to provide an explanation for the dismissal and consequently given the limited information available it is not appropriate to form any final conclusions about the fairness of the dismissal and the question of merit is a neutral factor for the determination of the extension of time question.

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

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

Conclusion

[16] 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. I have considered the information provided by Mr Jenkins. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[17] 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.

[18] Consequently there will be no further proceedings regarding Mr Jenkins’ application and his file will be closed.

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

COMMISSIONER

Final written submissions:

Applicant, 28 August 2014

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