David Roberts v Challenger Cleaning (Qld) Pty Limited

[2014] FWC 5730

[2014] FWC 5730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Roberts
v
Challenger Cleaning (QLD) Pty Limited
(U2014/5436)

COMMISSIONER BLAIR BRISBANE, 20 AUGUST 2014

Application for relief from unfair dismissal.

[1] An application was lodged with the Fair Work Commission (the Commission) by Mr David Roberts (the Applicant) under s394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy with the respondent to the application being Challenger Cleaning (QLD) Pty Limited (the Respondent). Conciliation occurred between the parties on 8 May 2014 but the matter was not settled. An objection to the Commission having jurisdiction to hear the matter was lodged by the Respondent.

[2] The Respondent has raised two objections. The first objection is in relation to the date of lodgement of the application, in that it was beyond the 21 day time limit specified at section 394 of the Act. The second objection is in relation to whether or not the termination was at the instigation of the Respondent.

[3] Section 394 of the Act states:

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.

[4] The Applicant states that they were terminated at the end of January 2014 and it has been decided that 31 January 2014 is the date on which the termination took effect.

[5] The Commission determines that it is not appropriate to extend the 21 day time limit in order to accept the application. Section 394(3) of the Act sets out matters which the Commission must take into account when determining whether or not to extend time. It states that there must be exceptional circumstances. In determining the exceptional circumstances, the Commission must take into account the following:

[6] Section 394(3)(a), the reason for the delay. It is the Commission’s view that the Applicant was well aware from the Fair Work Ombudsman, when the Applicant spoke to them in early February, that, in the Applicant’s own words “you need to get it in within a couple of weeks”. The Respondent has pointed out that the Applicant was aware of his obligations because of previous proceedings which gave rise to his re-instatement or re-employment.

[7] Section 394(3)(b), whether the person first became aware of the dismissal after it had taken effect. In the Applicant’s view it was clearly at the end of January.

[8] Section 394(3)(c), any action taken by the person to dispute the dismissal. The Commission cannot rule on that because nothing has been submitted in relation to that.

[9] Section 394(3)(d), prejudice to the employer (including prejudice caused by the delay). The Applicant’s application was significantly out of time and it is now 18 August. The Commission is satisfied that there would be some prejudice suffered by the Respondent, although they are a reasonable sized employer.

[10] Section 394(3)(e), the merits of the application. The Commission cannot rule on that because nothing has been submitted in relation the merits of the application.

[11] Section 394(3)(f), fairness as between the person and other persons in a similar position. The Commission has made it clear that there have been applications that have been one day out of time and those applications have been rejected because there have been no exceptional circumstances that have been identified.

[12] The Commission is satisfied that the Applicant’s reasons for not complying with the time limit for lodging applications do not meet the requirements for the Commission to exercise its discretion to grant an extension of time beyond 21 days.

[13] Further, even if the Commission were to allow the application to be accepted, it is not satisfied that the Applicant meets the requirements of section 384 of the Act.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

[14] The Applicant did not work for the Respondent for more than six months and the Commission is not satisfied that the Applicant worked regular and systematic work or that the Applicant could have had a reasonable expectation to work regular and systematic work.

[15] Therefore the application is dismissed.

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