Darren Miller v Elliott Air-conditioning Controls

[2014] FWC 2517

[2014] FWC 2517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Miller
v
Elliott Air-conditioning Controls
(U2014/5728)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 APRIL 2014

Application for relief from unfair dismissal dismissed.

[1] Mr Daren Miller’s employment with Elliot Air-conditioning Controls (Elliot Air-conditioning) ended on 17 February 2014. He made an unfair dismissal application on 19 March 2014 which was more than 21 days after the date of his dismissal.

[2] Mr Miller has applied for an extension of time.

Procedural issues

[3] Mr Miller did not file witness statements until the day of the hearing. Mr McCosh, on behalf of Elliot Air-conditioning, objected to that evidence being received. I determined to admit the evidence. In this matter the reasons relied upon by Mr Miller to support an extension of time were contained in his application. Mr Miller said that he only discovered that a new ‘A grade’ electrician had been employed on 13 March 2014 and that he then sought advice from his union about lodging a claim.

[4] In Ghalloub v Aon Risk Services Australia Limited, a Full Bench of the Australian Industrial Relations Commission held as follows:

[25] Directions are often issued to facilitate the timely and expeditious determination of the application.While the utility of directions may vary depending on the nature of the proceedings, directions can play an important role in case management.If complied with they help to delineate the issues of fact and law and reduce the need for adjournments to take instructions or to gather evidence. The importance of case management is now widely recognised in the law, and directions for hearing a matter are an important aspect of case management in the Commission.In Queensland v. J.L.Holdings Pty Limited the High Court accepted the importance of case management principles but said:

"However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."(references omitted)

[5] In this case, a refusal to permit Mr Miller to call evidence would mean that his application for an extension of time would fail. As a consequence, I rejected the application that the material not be admitted. Mr McCosh was provided with a short adjournment to enable him to review the material.

Background

[6] Mr Miller is an A grade electrician and he was a full time employee of Elliot Air-conditioning until the date of his dismissal. He worked on a variety of projects. He was told by his supervisor on 17 February 2014 that his position was redundant. Mr Miller was unhappy about this and sought advice from the Electrical Trades Union (ETU). Mr Ivan Balta, an ETU organiser, spoke with Mr Matthew Elliot of Elliot Air-conditioning who told him that the company was going through a down turn and he had to put someone off two weeks before and would have to reduce the number of employees in the future. While Mr Miller disputed this and said that there was work for him to do, Mr Balta told him that he did not think he had much of a claim for unfair dismissal. As a result, Mr Miller decided not to pursue his claim.

[7] On 12 March 2014, Mr Miller was told that Elliot Air-conditioning had employed another A grade electrician. He decided that he wished to pursue his claim so he contacted his union. On 13 March 2014, he made an appointment to see Ms Larkins from the ETU who told him that he was outside of the 21 day time limit. He told her what happened and she said it needed to be investigated.

[8] On 14 March 2014, Mr Balta asked Mr Reno Lia, another organiser, to find out if Elliot Air-conditioning had employed another electrician. On 17 March 2014, Mr Lia was told by the shop steward that another full time electrician had been employed. On 18 March 2014, Mr Elliot confirmed that another electrician had been employed. The application was filed the next day.

[9] Mr McCosh, from the bar table, submitted that after Mr Miller had been made redundant, Elliot Air-conditioning were advised that they needed to ramp up labour on another job and therefore they needed to employ another electrician. It was said that this job was not a long term position.

[10] The Fair Work Commission (the Commission) has the discretion to extend time for the lodging of an unfair dismissal claim, but only if it is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must take into account:

The reason for the delay: s.394(3)(a)

[11] The reason there was a delay in lodging an application was because Mr Miller did not find out until 12 March 2014 that his previous employer had hired another electrician. While he was unhappy at the time of his dismissal, he had been prepared to accept the ETU’s advice that it was not worth running an unfair dismissal case until this happened. The ETU did not lodge his application until they made enquiries to confirm the employment of the electrician.

[12] The discovery on the 12 March 2014, of the employment of a new electrician, called into question for Mr Miller whether his redundancy was genuine. While he had his doubts about the redundancy from the beginning, the reason he did not lodge his application by 10 March 2014 was because he had been advised that it was not worth running.

[13] On 13 March 2014, Mr Millar was told by Ms Larkins that he was outside of the 21 day time limit. Despite this knowledge, the ETU took another six days to lodge the application. The delay was caused by the time the ETU took to investigate Mr Millar’s information. There was no evidence that Mr Miller instructed the ETU to immediately lodge his application and they failed to do so. There was no submission that the additional delay was caused by representative error.

[14] The discovery of the employment of a new employee on 12 March 2014 weighs in favour of granting an extension of time; however the subsequent delay is not explained. Neither the ETU nor Mr Miller acted promptly in lodging the application. Knowing that the time had already expired, one would have expected Mr Miller and his representatives to make immediate inquiries and to file an application to protect Mr Miller’s rights. This delay weighs against granting an extension of time.

Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)

[15] Mr Miller knew of his dismissal when it took effect.

Any action taken by the person to dispute the dismissal: s.394(3)(c)

[16] Mr Miller disputed his dismissal. As set out above, his union representative contacted his employer on two occasions to make enquiries about the reasons for the dismissal.

Prejudice to the employer (including prejudice caused by the delay): s.394(3)(d)

[17] Mr McCosh submitted that that Elliot Air-conditioning would be prejudiced because it would now have to defend an unfair dismissal claim. However no particular prejudice was identified. This criterion is neutral.

The merits of the application: s.394(3)(e)

[18] Mr Reidy submitted that the merits favoured Mr Miller because there clearly had not been consultation as required by the Fair Work Act 2009 and therefore this was not a genuine redundancy. In the employers response (Form F3) filed by Elliot Air-conditioning, it was said that consultation occurred in January 2014 because Mr Miller was continually asking about his next project. I have not had regard to the statements made from the bar table by Mr McCosh about the circumstances of the employment of the electrician. Elliot Air-conditioning was on notice that this was in dispute and called no evidence to support this submission.

[19] However without more, I am not able to assess the strengths of the parties’ respective cases and therefore this criterion is neutral.

Fairness as between the person and other persons in a similar position: s.394(3)(f)

[20] I was not taken to matters of a similar kind.

Conclusion

[21] Mr Miller is required to provide a credible reason for the whole period of the delay. 1

[22] Had the application been made on the 12 or 13 March 2014, I would have found that there were exceptional circumstances warranting an extension of time. However, once Mr Miller knew of the employment of the new electrician, it was incumbent on him and his representative to act promptly. No reasonable explanation was provided as to why it took another five to six days to then lodge the application. This is not a case where the other criteria outweigh the failure of Mr Miller to lodge his application once he became aware of the changed circumstances. Therefore, I find that there are no exceptional circumstances warranting an extension of time. The application for an extension of time is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr K. Reidy for the Applicant.

Mr K. McCosh for the Respondent.

Hearing details:

2014;

Melbourne;

11 April.

 1   Thiess Services Pty Ltd v M Stephens[2014] FWCFB 2426 at [37] and Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408‒409. See alsoMarschall v Home Care Plus[2013] FWC 5299 at [29].

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