Dave Marshall v Woolstar Pty Limited

[2011] FWA 2237

[2011] FWA 2237

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dave Marshall
v
Woolstar Pty Limited
(U2010/9820)

VICE PRESIDENT LAWLER MELBOURNE, 12 APRIL 2011

Termination of employment.

[1] This is an application for an unfair dismissal remedy. The application was filed out of time. The events that have transpired in relation to this application are set out in a letter dated 15 March 2011 sent to the applicant by my associate. That letter is in the following terms.

“Your application for an unfair dismissal remedy was filed on 16 June 2010. It was filed out of time and, accordingly, Fair Work Australia has no jurisdiction to deal with the application unless and until time is extended pursuant to s.394(2)(b) of the Fair Work Act 2009.

The application was listed for an extension of time hearing on 21 September 2010. A notice of listing for that date was sent to your Oxford Street address (the address you provided in your application). It appears that you received that notice of listing because by letter dated 13 August 2010 you sought an adjournment of the hearing on the basis that you were in prison. You sought a hearing date after 15 November 2010. The matter was again listed for an extension of time hearing on 15 December 2010. A notice of listing was sent to your Oxford Street address. There was no appearance by you or any person on your behalf on 15 December 2010. Attempts to contact you and your partner on that day by the mobile phone on the numbers provided by you were unsuccessful.

I wrote you on 21 December 2010, enclosing a copy of the transcript for 15 December 2010 and inviting you to contact me regarding the relisting of the matter. You contacted me by phone on 29 December 2010 and indicated that you had not received the notice of listing for 15 December 2010 and that you did wish to proceed with the matter. You confirmed that your Oxford Street address remained your correct postal address. I indicated that Vice President Lawler was away on leave and would raise the matter with him upon his return and notify you as to how the matter will proceed.

I have attempted to contact you on your mobile phone number on 31 January 2011 and 6 February 2011. On each occasion you did not answer and I left a short message for you to call me. You have not contacted me in response to those messages.

The purpose of this letter is to give you one last opportunity to be heard in relation to your extension of time application (you will note from the transcript that Vice President Lawler will not be requiring Woolstar to respond further unless you demonstrate a prima facie case for an extension of time).

Vice President Lawler has decided that he will deal with your extension of time application in writing in the first instance. Accordingly, this letter directs you to file with Fair Work Australia by 4.00 p.m. on Friday 1 April 2011 a statutory declaration setting out the facts and circumstances on which you rely in support of your application for an extension of time together with any written submissions you wish to make in support of that application.

Vice President Lawler will determine whether you have established a prima facie case for an extension of time on the basis of the material you file. In the event that nothing is filed you can assume that your application for an extension of time will be refused and your substantive application for relief dismissed.

For you assistance, I have enclosed a copy of s.394(3) so that you can address the relevant criteria. It is important that you identify the reasons for your delay in filing your application for an unfair dismissal remedy being reasons that account for the whole of that period of delay. In particular, your statement ought address the dates that your went to jail and the dates that you got out of jail and any period you were not in jail.”

[2] No response has been received from the Applicant. In particular, the Applicant did not comply with the direction contained conveyed in my Associate’s letter. I will now decide whether time should be extended based on the material already before me in the file.

[3] The originating application contends that the applicant was employed by the respondent in July 2008 and was dismissed on 14 September 2009. The originating application was filed on 17 June 2010, some nine months after the dismissal.

[4] The dismissal was based on abandonment of employment. In relation to why the dismissal is said to be unfair, the originating application states:

“GOT CAUGHT RIDING MY MOTOR BIKE UNLICENCED TO WORK INFORMED HR (CATH HUGHES) THAT I HAD TO FRONT COURT IN 12 WEEKS - SHE TOLD ME MY JOB WAS SECURED - ENDED UP DOING 8 MONTHS JAIL - 2 WEEKS AFTER BEING INCARCERATED I RECEIVED A LETTER SAYING I ABANDON MY WORK PLACE. I THINK THAT WAS UNFAIR AS THEY INFORMED ME I WOULD HAVE MY JOB BACK UPON RELEASE. THE COMPANY WAS KEPT UP TO SPEED WITH MY COURT CASES I WROTE TO WOOLSTAR TO INFORM THEM I HAD RECEIVED 8 MONTHS INCARCERATION BUT NEVER RECEIVED A REPLY. UPON MY RELEASE I RANG WOOLSTAR THE SAME DAY AND ASKED WAS I RIGHT TO RESUME WORK ALISON FROM HUMAN RESOURCES SAID I HAD ABANDONED MY WORK PLACE AND I NEVER MET THE NEEDS OF MY CONTRACT!!” (underline emphasis added)

[5] If the applicant received the dismissal letter two weeks after being incarcerated, this places the commencement of the incarceration at the beginning of September 2009. (In fact, it seems that the incarceration commenced in early August 2010.) An eight month jail sentence would have seen the applicant released in about the beginning of May 2010 at the latest. Further, it is clear from the portion of the application quoted above that the applicant had been released prior to filing his originating application on 17 June 2010.

[6] The letter from the applicant in which he sought an adjournment of the original listing is dated 13 August 2010 and is written from the “Junee Correctional Centre”. That letter refers to the applicant “currently being in jail until the 15th November 2010 for driving to work whilst disqualified.” It is not clear how the applicant came to be in jail until 15 November 2010 if he was sentenced to eight months jail and had been released by 17 June 2010. Logically, the most likely explanations are that the applicant was untruthful about the length of his jail sentence or that he had/has committed other offences and was imprisoned for a second period. Neither of those alternatives assists the applicant.

[7] Section 394(2) provides that an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect or within such further period as FWA allows under subsection (3). Section 394(3) provides:

“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[8] In relation to (a), a large portion of the delay in filing the application may be explained by the fact that the applicant was incarcerated albeit that the respondent has no responsibility whatever for that having occurred. However, there is no satisfactory explanation for the delay between early May 2010 and 17 June 2010.

[9] In relation to (b), the applicant became aware of his dismissal shortly after it took effect (the best inference is that this was a matter of days or perhaps even as long as several weeks - the time that it took for the letter of dismissal to find its way to the applicant in jail).

[10] In relation to (c), there is no material before me to suggest that the applicant took any action to dispute the dismissal other than filing his application for an unfair dismissal remedy in June 2010.

[11] In relation to (d), there is no material before me at present of any particular prejudice to the employer beyond the usual prejudice that accrues through the effluxion of time.

[12] In relation to (e), on the applicant’s own version of events, the merits of the application are poor. On the material before me there was no consideration given by the applicant to the respondent in relation to what the applicant would no doubt style as a promise from Cath Hughes (a matter denied by the respondent). Moreover, on the material before me I find it more likely than not that the applicant was incarcerated for a second time such that he would not have been able to resume uninterrupted employment in accordance with the alleged ‘promise’ from Ms Hughes. Putting aside the alleged ‘promise’ by Ms Hughes, there is nothing that obliges an employer in the position of the respondent in this case to hold a job open for an employee who jailed in consequence of a criminal conviction.

[13] While I am satisfied that being incarcerated constitutes an “exceptional circumstance” within the ordinary English meaning of that expression, I am not satisfied that it would be just, as a matter of discretion, to visit the consequences of that exceptional circumstance on the respondent. In any event, there is no satisfactory explanation for the delay from early May 2010.

[14] In all the circumstances I am not persuaded that I should exercise the discretion to extend time in this case. I decline to extend time. It follows that the originating application must be dismissed on the basis that it was filed out of time and, accordingly, the tribunal has no jurisdiction to deal with it.

VICE PRESIDENT

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