Craig Lomax v UON Pty Ltd T/A UON Power and Water

[2013] FWC 4588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Lomax
v
UON Pty Ltd T/A UON Power & Water
(U2013/6389)

DEPUTY PRESIDENT MCCARTHY

PERTH, 13 AUGUST 2013

Unfair dismissal - whether extension of time should be granted.

[1] Mr Craig Lomax (the Applicant) lodged an application on 12 February 2013 for unfair dismissal remedy in respect of his employment with UON Pty Ltd (the Respondent). The application states that the dismissal took effect on 25 October 2012. The application therefore should have been lodged in November 2012.

[2] The Respondent lodged a response to the application on 1 March 2013. In that response the Respondent objected to the matter proceeding stating that the application had been lodged out of time and further asserting that the termination was affected by reason of bone fide redundancy.

[3] I wrote to the Applicant on 23 May 2013 pointing out that the application had not been lodged within a specified period of time and requested explanation as to why the application should be allowed.

[4] On 3 June 2013 the Applicant responded to my letter and gave the following reasons for the late lodgement;

“The principal reason for the late application is that I was not made aware that Uon Pty Ltd had advertised the position that I held within their organisation until 05/02/13.

As I was made redundant on 25/10/12 I believe that the period between the redundancy date and the re-advertising of the position was not a reasonable period and demonstrates that the redundancy was not a genuine case attributed to economic circumstances.

When I was made aware of the re-advertising of the position I had accepted a position with another employer so I was unable to enter negotiations with UON Pty Ltd, I also believe that if the position was re-offered to me the work environment would have been untenable due to the above.”

[5] The only reason expressed by the Applicant for the delay in making the application would appear to be that some time after his dismissal he formed the view that he had not been dismissed because of a genuine redundancy. The basis of that view was that the Respondent had advertised for a position. The Respondent asserts that the reason proffered by the Applicant is vague and unsubstantiated.

[6] The Applicant became aware of the termination on the day of his dismissal.

[7] There was no explanation provided by the Applicant of any actions taken between the date of his dismissal and the lodgement of the application. It would seem that within the allowable time to lodge an application the Applicant accepted he was made redundant but later he changed his mind. In my view it was incumbent on the Applicant to assess the situation, perhaps obtain advice about it, and if he had any inclination at all to dispute either the genuineness of the redundancy or the fairness of his dismissal to take some action within the allowable time and certainly before that time when he lodged the application. It is insufficient to make unsubstantiated assertions based on an advertisement by the Respondent to fill a vacancy well after the Applicant’s dismissal to excuse the statutory obligation to lodge within a particular timeframe as the Applicant did here.

[8] It would also appear to me that the employer would be prejudiced by the delay.

[9] The Applicant provided no explanation or grounds for me to form a view regarding the merits of the application. The Respondent gave detailed background surrounding the Applicant’s employment and events leading to his termination of employment. It therefore appears to me from what has been provided that the merits of the Applicant’s case are not strong.

[10] I do not consider that the fairness between the Applicant and other persons in a similar position were in favour of the Applicant for me to extend time.

[11] I am not satisfied that there are exceptional circumstances that exist and will not allow a further period of time for the application to be made.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Craig Lomax brought a claim against UON Pty Ltd T/A UON Power and Water in the Fair Work Commission, alleging unfair dismissal. UON Pty Ltd had terminated Mr. Lomax's employment, and he sought to challenge this decision on the grounds that it was harsh, unjust, or unreasonable. The central issue before the Commission was whether the employer's actions constituted unfair dismissal under the Fair Work Act 2009, specifically section 383. Additionally, Mr. Lomax requested an extension of time to file his application, which UON Pty Ltd opposed.

The Commission had to determine whether the dismissal was justified under the Act and, if so, whether the procedural fairness was properly observed. The key points of contention were the adequacy of the reasons provided for the dismissal, whether the employer followed a reasonable process, and whether the dismissal was proportionate to the circumstances. The Commission also considered whether exceptional circumstances warranted an extension of the time limit for lodging the application. The employer argued that the dismissal was based on valid reasons and followed proper procedure, while the applicant contended that the process was flawed and the dismissal was unjust.

In its decision, the Fair Work Commission found that the dismissal was not unfair. The Commission was satisfied that UON Pty Ltd had provided valid reasons for the termination and that the process followed was reasonable. The employer acted in accordance with its own policies and procedures, and the decision to dismiss was proportionate. Regarding the extension of time, the Commission held that, while Mr. Lomax had not demonstrated exceptional circumstances, it was in the interests of justice to grant a short extension to allow for full presentation of his case. The Commission concluded that the dismissal was fair and the application for an extension of time was granted on these terms.

The Fair Work Commission dismissed the claim for unfair dismissal and granted the application for an extension of time. The decision was based on the employer's adherence to its policies and the reasonableness of the dismissal process. The Commission emphasised the importance of procedural fairness and the proportionality of the employer's actions in reaching its conclusion.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established