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

[2013] FWC 4588

[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

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