Day v CBI Constructions Pty Ltd

[2013] FWC 5359

[2013] FWC 5359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Day
v
CBI Constructions Pty Ltd T/A CB&I
(U2013/8959)

DEPUTY PRESIDENT MCCARTHY PERTH, 5 AUGUST 2013

Extension of time. Application for relief from unfair dismissal.

[1] Mr Mathew Day (the Applicant) lodged an application on 26 April 2013 for unfair dismissal remedy (the Application) pursuant to s.394 of the Fair Work Act 2009 (the FW Act) claiming that the he had been dismissed from his employment with CBI Constructors Pty Ltd (the Respondent). The dismissal took effect on 7 January 2013. The application was therefore lodged some three months beyond the time allowed by s.394 (2) of the FW Act.

[2] In the application the Applicant relied on the following grounds for an extension of time for the application to be lodged:

“1. The applicant immediately challenged the dismissal at the time and pleaded with the employer for his job back;

2. The applicant provided evidence of his illness;

3. The applicant has a very strong case on the merits both as to procedure and as to substance.”

[3] On 8 May 2013 the unfair dismissals team (UDT) of the Fair Work Commission (FWC) notified the Respondent of a conciliation conference to be held on 27 May 2013.

[4] The Respondent lodged a response the application on 10 May 2013. In that response the Respondent objected to the application being allowed due to it being lodged outside the time. The Respondent provided the following grounds in support of their objections.

“In this matter, [the Applicant] was first made aware of the dismissal when he received written notice to that effect on 7 January 2013; and his Representative has provided no valid reason as to the 109 day delay.

In between the dismissal taking effect, and the lodging of this Application, [the Applicant] had not raised any grievance as to the termination. Until being served with this Application, CB&I had no forewarning of the issues raised.

The Application itself is entirely without merit, and in light of the matters set out in this response it cannot succeed.”

[5] On 10 May 2013 the Respondent also advised it was willing to participate in the conciliation process but foreshadowed a potential to the issue of a costs application as it considered the application had no reasonable prospect of success due to the late lodgement of the application. The Respondent also requested a rescheduling of the conference due to unavailability. The conference was held on 29 May 2013.

[6] On 30 May 2013 the application was allocated to me to deal with. On that date the Respondent also lodged an objection to the application (the Notice of Objection) and sought dismissal of the on the ground of the 88 day exceeding of the allowable time to lodge such matters.

[7] I wrote to the Applicant and requested further explanation as to whether exceptional circumstances existed such that the allowable time should be extended. The Applicant lodged a statement of facts and submissions in support of an extension. The statement of facts included the following:

1. The Applicant had about 6 months left to complete his apprenticeship.

2. The Applicant did not want to take action against the Respondent for fear of getting a bad reputation and also hoped that he may be able to return to work with the Respondent in the future.

3, The Applicant does not claim compensation but applied for re-instatement.

[8] In the months following the dismissal, the Applicant says he tried unsuccessfully to find another host employer to complete his apprenticeship. He searched for positions on SEEK and he attended various employer face to face but all to no avail.

[9] Around 26 April 2013 the Applicant also says he spoke with a supervisor from the Respondent who told the Applicant that the Respondent did not follow its usual policy with apprentices in the Applicant’s case when it dismissed him and ought to have warned the Applicant and transferred him to another division.

[10] The Applicant submitted that he sought assistance from Workclaims Australia Industrial Agents and his application was lodged in the Fair Work Commission on 26April 2013.

[11] The Respondent in their notice of objection outlined detailed reasons why they are of the view that exceptional circumstances did not exist. I did not request any further submissions or information from the Respondent.

[12] The reason for the delay seems to be that the Applicant was looking for alternative means to complete his apprenticeship and was concerned that making an application of this nature could jeopardise that endeavour. It also seems that some months after the dismissal the Applicant was advised or became aware of asserted inadequacies in the procedures of the employer leading up to the dismissal.

[13] The Applicant became aware of his to dismissal at the time of it taking effect.

[14] The Applicant appears to have taken no action after his dismissal to dispute the dismissal. He may have held or endeavoured to hold discussions with the employer to have the dismissal revoked in order that he could complete his apprenticeship but he does not appear to have taken action to dispute the dismissal. I do not make a finding of fact in this regard. I am prepared to accept the Applicant’s version of this element of his actions for the purposes of this decision.

[15] I consider that the employer would be prejudiced should the application be allowed to proceed.

[16] The application states that Applicant’s employment was terminated due to his failure to notify the employer of an absence. The absence occurred on 20 and 21 December 2012. The Applicant returned to work after the Christmas break on 7 January 2013 and at that time provided a medical certificate for the absence. The Applicant asserts that the employer purported to conduct an investigation into the absence but failed to notify the Applicant of its terms or any allegations made against him. The Applicant therefore contended that the termination of employment was unfair because there was no valid reason for the dismissal, the Respondent did not follow its own policies and procedures, there was a denial of natural justice and the Applicant was not provided with the substance of any allegations against him nor given the opportunity to respond to those allegations.

[17] The Respondent in their Employers Response to the Applicant’s contentions submitted the letter of termination of 7 January 2013 in which they provided the reasons for the dismissal. These reasons were that the Applicant had an unauthorised absence on 20 and 21 December 2013 and that he had continually failed to provide notification for his inability to attend work. The letter indicated that there had been previous verbal warnings and other performance and disciplinary meetings including a final warning and performance improvement plan issued on 29 October 2012. Furthermore the Respondent in that letter asserted that at the termination meeting the Applicant indicated he was aware of and understood requirements regarding the Respondent’s expectations about notification of any inability to attend for work.

[18] A schedule of a history of issues relating to the Applicant’s employment and warnings and counselling provided to him included three written warnings and a formal counselling session in the six months prior to the dismissal. The schedule also included content of the discussion held on 2 January 2013 relating to an incident and circumstances surrounding the Applicant’s absence in December. It is unnecessary to canvass those circumstances in this decision.

[19] The Applicant submissions relating to the extension of time merely states that the application has merit and that consideration must await the full evidence on oath and discovery of documents. Whilst findings generally do require evidence by declarations under oath, consideration of the merits of an application in matters concerning section 394(3) are obliged to be taken into account in matters of this nature. Here the employer has outlined detailed reasons for the dismissal including conduct and performance history over the previous six months. I’m obliged to take into account the merits by operation of s.394(3)(e). In this matter of merits of the application weigh against a finding of exceptional circumstances existing.

[20] I also do not consider the fairness between the Applicant and other persons weigh in favour of the Applicant.

[21] I therefore find that exceptional circumstances do not exist and that the application should not be allowed.

DEPUTY PRESIDENT

Final written submissions:

Applicant 30 July 2013

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