Cornelius Scannell v Sands Fridge Lines Pty Ltd
[2019] FWC 6869
•8 OCTOBER 2019
| [2019] FWC 6869 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cornelius Scannell
v
Sands Fridge Lines Pty Ltd
(U2019/6165)
| Commissioner Williams | PERTH, 8 OCTOBER 2019 |
Application for an unfair dismissal remedy.
This matter involves an application (Application) made by Mr Cornelius Scannell (Mr Scannell or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Sands Fridge Lines Pty Ltd (the Respondent)
The Respondent objects to the Application on the basis that it has been filed out of time.
Section 394 of the Act, set out below, requires an application to be made within 21 days after the dismissal took effect.
“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.”
In reviewing the Application, it is clear that it was made by email, dated 4 June 2019 at 3:13 PM sent by Mr Scannell’s paid representative, Unfair Dismissals Direct. The Application filed by Unfair Dismissals Direct states Mr Scannell was notified of his dismissal and the dismissal took effect on 4 April 2019.
It is apparent that the Application was filed later than 21 days after the dismissal took effect.
Consequently, the Commission directed the Applicant to provide any relevant evidence and submissions in writing for the Commission to determine if there are exceptional circumstances warranting a further period for the Application to be made be after the 21-day time limit.
In compliance with those directions Unfair Dismissals Direct has provided written submissions explaining the relevant background, including that the Applicant relies on representative error as constituting exceptional circumstances, submitting that considering this and the other factors an extension of time should be allowed by the Commission for this Application to be made.
Mr Uphill the paid representative for the Respondent has provided submissions in reply opposing the extension of time sought by the Applicant.
Factual findings
There is no relevant disagreement as to the facts of this matter which are set out below.
Mr Scannell on 4 April 2019, was dismissed by the Respondent. He was given a letter of termination that states his employment was terminated immediately as of 4 April 2019. These details are reflected in the Application.
On 8 April 2019, the Applicant contacted Unfair Dismissals Direct requesting representation in an unfair dismissal application.
On 11 April 2019, a staff member of Unfair Dismissals Direct spoke with the Applicant via telephone. The Applicant provided information and documentation by email to facilitate the filing of his Application.
On 15 April 2019, the Applicant received from Unfair Dismissals Direct a Terms of Engagement for his signature and he returned a signed copy by email the same day.
Unfair Dismissals Direct submits that on 18 April 2019, Ms Coombs an employee of Unfair Dismissals Direct filed a Form F2 Unfair Dismissal Application U63/2019 on the Applicant’s behalf in the Western Australian Industrial Relations Commission (WAIRC). [1]
On 7 May 2019, the Respondent filed its response in the WAIRC to U63/2019 raising the jurisdictional objection that the Applicant’s employer was a trading Corporation under the national system covered by the Act. [2]
On 8 May 2019, the parties including Unfair Dismissals Direct, at two separate email addresses, were advised that the WAIRC proposed to determine the issue of jurisdiction prior to any further consideration of the matter and provided correspondence outlining how the matter would proceed. The email indicated a hard copy would be provided by post. [3]
On 4 June 2019, on behalf of Mr Scannell, Unfair Dismissals Direct lodged a Form 1A Multipurpose Form withdrawing U63/2019, the unfair dismissal application they had previously made in the WAIRC.
Also, on 4 June 2019 this Application was made by Unfair Dismissals Direct on behalf of Mr Scannell by email to the Fair Work Commission (Commission) registry.
No evidence was provided, nor any submission made, by Unfair Dismissals Direct regarding the period between 8 May 2019 and 4 June 2019.
Submissions
The Applicant
Unfair Dismissals Direct on behalf of the Applicant submit that the Applicant relies on a representative error as constituting exceptional circumstances, which warrants an extension of time and submits that it would be manifestly unfair on him should the Commission refuse to conciliate the matter. [4]
Unfair Dismissals Direct submits the Applicant does not shoulder any of the blame for the Application being lodged in the incorrect jurisdiction and it bears sole responsibility for the inadvertent error of Ms Coombs in filing the Application in the incorrect jurisdiction.
Unfair Dismissals Direct submits that it would be unfair on the Applicant should the Commission refuse to exercise its discretion to grant an extension.
Unfair Dismissals Direct submits that representative error was the sole reason for the delay. It submits the conduct of the Applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. [5]
Unfair Dismissals Direct submits that the Applicant corresponded with its staff on 8 April, 11 April and 15 April 2019.
Unfair Dismissals Direct provides further submissions regarding section 366 of the Act. The Commission notes that this Application is not an application made under section 365 and section 366 has no application.
The Commission does acknowledge that there is commonality in the factors referred to in section 366 and those relevant to this unfair dismissal matter which are set out in section 394(3).
Unfair Dismissals Direct submits that there is no prejudice to the Respondent as a result of the delay in making this Application and the Application is a meritorious claim.
Unfair Dismissals Direct submits that in all the circumstances an extension to file this Application should be granted.
The Respondent
The Respondent objects to an extension of time being granted.
Mr Uphill submits that the act of mistakenly filing the application in the WAIRC was a very basic error and Unfair Dismissals Direct are supposedly experts in unfair dismissal matters and yet have not even lodged the claim in the correct jurisdiction. It was an avoidable error. The identity of the Respondent is not complicated and if Unfair Dismissals Direct had checked the facts and acted competently, they would have filed the claim in the Fair Work Commission in the first instance.
For the Respondent, Mr Uphill submits that whilst Unfair Dismissals Direct argues the Applicant and Unfair Dismissals Direct corresponded between the 8 and 15 of April 2019, there is no mention of any contact between them from 15 April 2019 through to the date of lodgement of this Application in the Commission. There is no explanation for this period of the delay.
Further Mr Uphill submits that the Applicant’s representative Unfair Dismissals Direct was aware of the Respondents jurisdictional objection from 8 May 2019. Shortly after this date Unfair Dismissals Direct should have immediately lodged the fresh application in the Commission. However Unfair Dismissals Direct took far longer to lodge this Application.
It is submitted, there is no mention of any contact between the Applicant and Unfair Dismissals Direct in the period after 8 May 2019. There is no indication that the Applicant took any steps to enquire about the status of his matter between 8 May 2019 and when this Application was filed in the Commission.
With respect to prejudice to the employer it is submitted that the Respondent has replaced the Applicant and the Respondent’s employees will be prejudiced by further uncertainty and possible future disruption if the extension is granted.
Mr Uphill for the Respondent submits that with respect to merit the dismissal was for a valid reason namely unauthorised access to the working premises whilst being under the influence of alcohol, exposing the Applicant’s safety and that of others to a high risk of an incident. The dismissal was carried out in a procedurally fair manner consistent with the requirements of section 387. The Respondent submits the Application has no prospects of success and the lack of merit of the application weighs against granting an extension of time.
Consideration
Reason for the delay
I accept the error made by Unfair Dismissals Direct in filing the Applicant’s unfair dismissal application in the WAIRC, when it obviously should have been filed in the Fair Work Commission explains the delay in making this Application, up to shortly after Wednesday 8 May 2019 from when it must have been clear to Unfair Dismissals Direct that the Application had been made in the wrong jurisdiction. This part of the delay in making this Application was due to representative error for which the Applicant was blameless.
However, nothing has been put before the Commission which explains why there was a further period of delay from shortly after 8 May 2019, through to when this Application was made by Unfair Dismissals Direct on 4 June 2019. There is no evidence nor any submissions as to what occurred during this period at all.
Consequently, I am not satisfied that there is an acceptable explanation for the delay in making this Application.
When the Applicant first became aware of the dismissal
The Applicant was made aware of his dismissal on the same day it took effect.
Action taken to dispute the dismissal
The Applicant did take action by engaging Unfair Dismissals Direct to be his representative and to make an unfair dismissal application on his behalf.
Prejudice to the employer
There could be some prejudice to the employer if this application were to proceed and it was successful and if it led to the Applicant be reinstated however, of course this could be said of most applications for an unfair dismissal remedy and I do not accept this is a significant factor.
The merits of the application
The parties are in disagreement as to the merits of the case which is usually the situation. Without a full hearing of this matter on the limited information available it is not possible for the Commission to have a clear view about this issue. Consequently, I view this as a neutral factor.
Fairness between the person and other persons in a similar position
This is not a relevant factor.
Conclusion
Taking into account all of the matters above I am not satisfied that in this case there are exceptional circumstances that warrant the Commission exercising its discretion to allow the Applicant a further period within which to make this Application.
An Order to this effect will be issued in conjunction with this decision.
<PR713029>
[1] Applicant’s submission at [7] and Attachment 2 to the Respondent’s submission.
[2] Attachment 3 to the Respondent’s submission.
[3] Attachment 4 to the Respondent’s submission.
[4] Applicant’s submission at [8] and [19].
[5] Applicant’s submission at [20].
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