David Hodson v Kalari Pty Ltd T/A Kalari

[2011] FWA 5586

[2011] FWA 5586

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

David Hodson
v
Kalari Pty Ltd T/A Kalari
(C2011/5257)

COMMISSIONER BISSETT MELBOURNE, 22 AUGUST 2011

Application for an extension of time.

[1] Mr David Hodson (the Applicant) has lodged an application for Fair Work Australia to deal with a contravention of the general protections provisions of the Fair Work Act 2009 (the Act) involving a dismissal.

[2] Mr Hodson worked for Kalari Pty Ltd (the Respondent) as a forklift driver/yard worker. He commenced employment on 23 February 2011. His employment was terminated on 29 April 2011.

[3] Mr Hodson lodged his application for Fair Work Australia to deal with the matter on 26 July 2011.

[4] Section 366(1)(a) of the Act requires that an application under s.365 of the Act be lodged within 60 days of the date the dismissal took effect. The Applicant in this matter has lodged his application 28 days late.

[5] The Respondent has raised a jurisdictional objection to Fair Work Australia dealing with the matter. This decision deals with that objection.

Legislation

[6] Section 366 of the Act states:

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

(a) within 60 days after the dismissal took effect; or

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

(2) FWA may allow a further period if FWA 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.

[7] I now consider those matters to be taken into account under s.366(2).

Reason for the delay

[8] Mr Hodson says that the reason for the delay was that his lawyers would not lodge the application until such time as he paid into a trust account an amount of $1500. As he was without work he had trouble raising that money.

[9] Mr Hodson gave evidence that he consulted lawyers as soon as practicable after the termination of his employment. The first action they took was to write to the Respondent. He says there was some correspondence backwards and forwards that got nowhere. He deposited the money into the trust account ‘about eight days prior to the cut-off.’

[10] Mr Hodson says he paid money to his solicitors on 1 July 2011. Whilst he provided a receipt of transfer of money there is nothing to indicate what this particular payment was for.

[11] The application was lodged with Fair Work Australia on 26 July 2011 by the Applicant’s solicitors.

[12] Mr Hodson’s evidence was that he did not become aware until about 9 August 2011 (six days prior to the hearing) that the application was out of time.

[13] Mr Hodson says that the reason for the delay is that his solicitor would not act to lodge his application with Fair Work Australia until he put the money into the solicitor’s trust account.

[14] Mr Hodson provided me with a copy of the correspondence he has received from the solicitors. That correspondence indicates that he first attended his solicitor on 9 May 2011. From this he was advised that an application to Fair Work Australia would need to be lodged within 60 days of the termination of his employment, namely no later than 29 June 2011. After this meeting with his solicitor a letter was sent to the Respondent on 19 May 2011 seeking Mr Hodson’s reinstatement.

[15] On 28 July 2011 the Applicant’s solicitor wrote to him advising that, on his instructions, they had lodged a general protections application with Fair Work Australia notwithstanding that the Respondent may raise a jurisdictional objection as the application was made outside the 60 day limit for the lodgement of such applications.

[16] On the basis of the material provided it is apparent that the evidence given by Mr Hodson, particularly with respect to dates, is unreliable. He was advised on 19 May 2011 that an application would have to be made by 29 June 2011 to be within time. He was aware on or about 26 July 2011 that his application had been lodged outside the requisite time period. This was four weeks prior to the hearing and two weeks prior to the date he claimed he became aware it was late. He says he deposited money with his solicitors about eight days prior to the cut off date (for filing within time) when in fact he did this at best the day after the required date for filing the application. Little credibility can be attached to the evidence of the Applicant, particularly with respect to timeframes.

[17] It appears that Mr Hodson instructed his solicitors to lodge his application on or after 1 July 2011 knowing that the application would be out of time.

[18] There is no evidence or material to suggest that he instructed his solicitor to file his general protections application within the required timeframe and through some error on the part of his solicitor that did not occur.

[19] Mr Hodson was clearly aware on 19 May 2011 that he could lodge an application with Fair Work Australia to deal with the alleged contravention of the general protections provisions of the Act. There was nothing in the correspondence from his solicitor that suggested he could not proceed to lodge an application with Fair Work Australia.

[20] Depending on the circumstances representative error may be a sufficient reason to extend the time for making an application. 1 In this matter I do not find the delay of Mr Hodson submitting his application as being attributable to an error of his solicitor.

Action taken to dispute the termination

[21] Mr Hodson’s employment was terminated on 29 April 2011. He saw a solicitor on 9 May 2011, just over one week after the termination. He instructed his solicitor to write to the Respondent disputing his termination. This letter was sent on 19 May 2011.

[22] I find that the Applicant did take action to dispute the termination of his employment. If there is a complaint of the delay in this letter being sent that delay, on the evidence, was not caused by Mr Hodson.

Prejudice to the employer

[23] No submissions were put to me on this matter.

Merits of the application

[24] An assessment of the merits of the application is always difficult when so little material is before the Tribunal on the matter.

[25] Mr Hodson claims his employment was terminated as a direct result of an impending WorkCover claim. Mr Hodson sustained a soft tissue injury at work. This occurred within a very short space of time after the Respondent’s CEO rolled out a talk on the effects of lost time injuries on the contracts of the company. The Applicant says that following his injury he was pressured to return to his normal duties. Whilst he did return to his normal duties he aggravated his injury while not at work. He says the employer was aware of this and knew that he would be lodging a WorkCover claim. He says, however, he was phoned and told to come into work when his employment was terminated.

[26] Mr Hodson attended work and was advised that his employment was to be terminated for work performance reasons. This meeting occurred prior to Mr Hodson actually lodging a WorkCover claim and before he had provided the employer with a certificate of incapacity from his doctor.

[27] The Respondent submits that the Applicant’s employment was terminated because of poor work performance in that he breached health and safety protocols by driving a vehicle on 21 April 2011 when he had not completed the training necessary to drive such a vehicle.

[28] On the basis of the material provided my preliminary view is that there is limited merit in the application.

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

[29] Nothing was put to me on this matter.

Should an extension of time be granted?

[30] The Act allows me to extend the period for lodging an application if there are exceptional circumstances taking into account those matters outlined above.

[31] In the circumstances of this case I do not consider that exceptional circumstances exist such that I should grant an extension of time.

[32] The application for an extension of time is refused.

[33] Given that the application was made out of time there is no jurisdiction for the Tribunal to deal with the matter. The application is dismissed.

COMMISSIONER

Appearances:

Mr D. Hodson on behalf of himself.

Ms M. Lyons on behalf of the Respondent.

Hearing details:

2011.

Melbourne:

15 August.

 1   Clark v Ringwood Private Hospital (1997) 74 IR 413.

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