Dale Woodworth v Stornoway Maintenance Pty Ltd T/A Stornoway

[2013] FWC 4211

[2013] FWC 4211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dale Woodworth
v
Stornoway Maintenance Pty Ltd T/A Stornoway
(U2013/7589)

COMMISSIONER DEEGAN HOBART, 28 JUNE 2013

Application for unfair dismissal - jurisdiction - application out of time - representative error - exceptional circumstances exist - time extended.

[1] On 18 March 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged on behalf of Dale Woodworth (the applicant) in respect of the termination of his employment by Stornoway Maintenance Pty Ltd (the employer).

[2] It was common ground that the employer had terminated the applicant’s employment on 23 January 2013.

[3] Section 394(3) of the Act provides:

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.

(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.

[4] In accordance with s.394(2)(a) of the Act, the applicant was required to lodge an application for unfair dismissal remedy with the Fair Work Commission (the Commission) by 13 February 2013. The application was not lodged until 18 March 2013, 33 days after the time for lodgement had expired.

[5] The applicant now seeks further time for lodgement in accordance with s.394(2)(b) of the Act.

[6] At the hearing, which took place on 17 June 2013, the applicant gave evidence that he had been in contact with his union (the Australian Workers’ Union) prior to his dismissal. Immediately after receiving the letter terminating his employment he again contacted his union representative, Mr Don Hayes, who requested that he provide him with evidence of telephone calls which might assist his case. It was the applicant’s evidence that he understood that his union representative would lodge an application with the Commission seeking a remedy in relation to the dismissal. It was also the applicant’s evidence that he had provided the telephone records to Mr Hayes on 15 February 2013. The applicant stated that he phoned Mr Hayes and discovered he was at a conference in Queensland and that Mr Hayes had told him that the application had been lodged and everything was fine.

[7] The union representative, Mr Hayes, also gave evidence and was cross-examined. He confirmed that he had had discussions with the applicant both before and immediately after his termination. He had told the applicant to provide him with relevant telephone records. He agreed with the applicant’s evidence that these had been provided within, or right on, the 21-day period allowed for the filing of the application. He stated that he had filled out a s.394 application on 15 February 2013 but was unable to explain why he had not filed the application with the Commission until 18 March 2013. He claimed to have told the applicant that he would file the application as soon as he had received the telephone records. It was his evidence that he had been interstate at a conference and for training during part of the period after the applicant’s termination and that the applicant had phoned at that time.

[8] It was Mr Hayes’ evidence that the applicant had told him to file an application for unfair dismissal and that he had failed to do so until 18 March 2013 but could give no further explanation or excuse for the delay.

[9] Both the applicant and Mr Hayes were cross-examined.

[10] On the evidence before me it is apparent that the applicant had given instructions to his union representative to file the application for unfair dismissal and the union representative failed to do so until 33 days after the time for lodgement had expired. The union representative was unable to give any reason for his failure to file the application in time. He stated that he had been waiting for the evidence of the telephone records to be provided but claimed that the applicant had provided him with these at about the time the 21-day period was to expire. The only other matter mentioned was that the union representative was absent at an interstate conference.

[11] So far as the other matters set out in s.394(3) are concerned:

• The applicant was made aware of the dismissal on the day the dismissal took effect;



• The union had disputed the dismissal with the employer immediately following the termination but took no further action until lodging the application on 18 March;



• The employer claimed no prejudice caused by the delay;



• On the limited evidence provided for these proceedings it could not be said that the application was totally without merit; and



• The case did not raise any matter of fairness as between the applicant and other persons in a similar position.

[12] On the evidence I must accept that the failure to lodge within the required time was the fault of the union representative. The applicant was under the belief that the application had been filed within time and had followed up the progress with the union representative. The union representative, despite putting forward no explanation for his failure to file within time, took responsibility for that failure. I also note that the union representative took the decision not to file until he had received the telephone records. The applicant should not be held responsible for the errors of his union.

[13] In these circumstances and on the authority of the Full Bench decision in Clark v Ringwood Private Hospital 1, I am satisfied that exceptional circumstances do exist such that the applicant should not be penalised for the failures of his representative. As the delay was clearly caused by representative error I will allow further time, until 18 March 2013, for the filing of the application.

[14] The application will be referred for arbitration.

COMMISSIONER

Appearances:

Mr R. Flanagan, for the applicant.

Mr B. Fitzgerald, for the employer.

Hearing details:

2013.

Hobart:

June 17.

 1 (1997) 74 IR 413.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR538329>