David Reynolds v Chandler Macleod

[2014] FWC 8958

[2014] FWC 8958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Reynolds
v
Chandler Macleod
(U2014/13021)

COMMISSIONER WILLIAMS PERTH, 11 DECEMBER 2014

Termination of employment - extension of time.

[1] Mr David Reynolds (Mr Reynolds or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Chandler Macleod (the respondent).

[2] Mr Reynolds in his application says he was dismissed on 1 September 2014 and the dismissal had effect the same day. The application was made on 6 October 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] The respondent objects to the application on the grounds that they assert Mr Reynolds has not been dismissed and that even if he had been he has not completed the minimum employment period of six months which is a pre-requisite for an employee to be able to make an application such as this.

[5] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[6] Submissions have been provided by both parties regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[7] The applicant explains that he had previously made a claim against Linfox Pty Ltd (Linfox) but they were not his employer even though he was working for them. He says he should have made his claim for unfair dismissal against Chandler Macleod because they were his employer.

[8] The respondent in reply submits that this is an unsatisfactory reason for the delay because the applicant was or should have been aware that he was employed by the respondent which is evidenced by the contract of employment which he signed, the pre-employment inductions and physical assessments he underwent with the respondent, the fact that he was receiving pay slips from the respondent and received SMS notifications all of these written materials were self-evidently from Chandler Macleod not Linfox. The respondent has provided written materials to the Commission in support of their submission which demonstrates that in each of the cases they mention the documentation does identify Chandler Macleod as the employer.

[9] A review of the Commission’s records shows that on 9 September 2014 the applicant made a prior application (U2014/12350) naming Linfox as the respondent employer. The response filed and served by Linfox expressly identified the correct employer as being Chandler Macleod. Following a conference on Friday, 3 October 2014 the applicant discontinued this application. The current application before the Commission was made the following Monday, 6 October 2014.

[10] The facts are that eight days after the day he believed he was dismissed the applicant made an unfair dismissal application against Linfox believing erroneously that they were his employer. When this error was made plain to him at the conference, the applicant that same day, being a Friday, discontinued that application and the following Monday filed a fresh application naming his employer correctly.

[11] It is apparent from the materials that the applicant had been advised around 1 or 2 September 2014 that he was no longer able to work on assignment with Linfox due to an alleged breach of their policies.

[12] The applicant is self represented.

[13] In some cases it can be understandable that an employee without legal advice may be confused as to which legal entity he should pursue in circumstances where he believes he has been unfairly dismissed. In this case as soon it has been made clear to him that he had wrongly identified his employer the applicant has as promptly as is possible remedied his error. He has appropriately discontinued the original application and the following working day made a fresh application correctly identifying his employer. In the particular circumstances of this case I do accept that this does provide a satisfactory explanation for all of the delay in making this application.

Whether the person first became aware of the dismissal after it had taken effect

[14] If indeed the applicant was dismissed on 1 September 2014 as he asserts then he was made aware of this on the same day it took effect.

Any action taken by the person to dispute the dismissal

[15] As noted above the applicant did make a prior application for an unfair dismissal remedy against a business that was not his employer.

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

[16] The time delay is relatively short and so there is no real prejudice to the respondent caused by the delay.

The merits of the application

[17] The applicant is contesting what he believes was his dismissal on the basis that he has not acted in any way that means he had not complied with the respondent’s or Linfox’s policies with respect to drugs in the workplace. Specifically the applicant challenges any positive drug test results.

[18] The respondent in its materials submits that the applicant was employed only since 7 August 2014 and so if he has been dismissed he has not completed the minimum employment period of six months which is required before an employee can make an application such as this. The respondent has provided the signed terms and conditions of employment between the applicant and the respondent which are dated 7 August 2014.

[19] The respondent says that on 2 September 2014 the applicant was advised he was no longer required to work on assignment with Linfox. The next day it was confirmed with the applicant that he remained employed with the respondent and would be considered for suitable casual assignments with other clients when they were available. As provided in the applicant’s terms and conditions of employment at paragraph 3.3 (b) “the end of an Assignment does not mean that you employment by the company has been terminated”.

[20] The respondent says it has had conversations with the applicant about roles that it has available with its other clients but the applicant has rejected pursuing these assignments because of his availability preferences. I note the applicant on 10 November 2014 spoke to my associate and said that the respondent had only called him once to this effect.

[21] On the albeit limited information available at this stage it seems likely that what has occurred was not a dismissal of the applicant by his employer but that the client Linfox no longer would accept the applicant to drive for them. In all likelihood the applicant remains an employee of Chandler Macleod. If this is the case because he has not been dismissed he is not able to make an unfair dismissal remedy application.

[22] If in a hearing of this matter the applicant can demonstrate that he indeed was dismissed and if it is shown to be the case that he was first employed in August 2014 then he obviously has not completed the minimum period of six months which is a prerequisite before an employee is allowed to make an unfair dismissal remedy application where the employer is not a small business as is the case here.

[23] Considering the above the applicant has a very weak case and in all likelihood his application if it did proceed will not be successful.

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

[24] This is not a relevant factor in this matter.

Conclusion

[25] 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.

[26] I have considered the information provided and the submissions. In this case there is an acceptable reason for the delay in making the application, the applicant has previously made a similar application and the length of the delay is relatively short however the substantive application has very little merit and this weighs heavily against finding there where exceptional circumstances in this instance. I am not satisfied that there are exceptional circumstances in this case.

[27] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[28] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 17 October 2014.

Respondent, 5 November 2014.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558885>