Dale Beattie v Ertech Pty Ltd

[2013] FWC 6115

[2013] FWC 6115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dale Beattie
v
Ertech Pty Ltd
(C2013/4979)

COMMISSIONER WILLIAMS PERTH, 27 AUGUST 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Dale Beattie (the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] Mr Beattie’s application states that he was dismissed on 11 January 2013. His application was made on 2 July 2013. His application was made after the 21 day time limit had passed.

[4] Consequently, I wrote to Mr Beattie explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Mr Beattie has provided a written submission and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

The reason for the delay

[6] Of the information provided, relevantly the applicant submits that shortly after his dismissal he was in financial hardship and still is. He submits his first thought was to find work and he did this through a friend and not long after was offered a job on a prawn trawler. This took up his time and in addition contact was made difficult because he was up north travelling in a friend’s car with no fixed address.

[7] Considering the applicant’s explanation I appreciate that being dismissed from employment will commonly mean a person suffers financial hardship and that they will often urgently need to find other employment. To that extent the applicant’s explanation of these reasons for the delay in making this application are not exceptional.

[8] I accept that being of no fixed address is not commonplace and certainly causes an individual considerable difficulties, however the Commission requires only that an applicant lodge their application within the specified time period. There are facilities for this to be done over the phone, by facsimile, email, post or in person. As such not having a fixed address does not prevent an applicant making their application within the 21 day time frame.

[9] Considering the applicant’s reasons for the delay I am not satisfied that these reasons satisfactorily explain a delay of approximately 20 weeks in making this application. In my view the reasons for the delay in this case are not acceptable reasons.

Any action taken by the person to dispute the dismissal

[10] There is no evidence that the applicant took any action to dispute his dismissal other than the making of this application.

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

[11] There was a lengthy delay in this matter however 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 little information about the reasons for the applicant’s dismissal. The application explains Mr Beattie was dismissed for misconduct. It says he was blamed for making a noise outside his accommodation which he says was not him. His application says he was sick the next day and could not work and was required to leave on a plane the next day. The applicant says he had a medical certificate. He says it was also claimed by his employer that he was drinking outside his accommodation but no breath test was taken in the morning.

[13] It seems that the applicant is asserting that he was wrongly blamed for making noise and for drinking outside his accommodation. Whilst he mentions that he had a medical certificate for one day he was sick it is not obvious from the application that the dismissal involved a contravention of the general protections provisions. Wrongly accusing an employee of misconduct they did not do and dismissing them because of that mistaken belief does not involve a breach of the general protections provisions. However, as is often the case until the matter is fully argued it is difficult for the Commission to determine whether the merits of the application do or do not support an extension of time. Consequently, I view the merits of the application as a neutral factor in this decision.

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

[14] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[15] 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 the applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[16] 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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