Dean Stothard v Macmahon Contractors Pty Ltd

[2014] FWC 4825

[2014] FWC 4825 [Note: An appeal pursuant to s.604 (C2014/1437) was lodged against this decision - refer to Full Bench decision dated 30 October 2014 [[2014] FWCFB 7389] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Stothard
v
Macmahon Contractors Pty Ltd
(U2014/6863)

COMMISSIONER WILLIAMS PERTH, 22 JULY 2014

Termination of employment - extension of time.

[1] Mr Dean Stothard (Mr Stothard 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 McMahon Contractors Pty Ltd (McMahon or the respondent).

[2] Mr Stothard was dismissed on 21 March 2014 with effect that day. The application was made on 29 April 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] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to allow 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 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.”

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

Are there exceptional circumstances?

The reason for the delay

[6] The applicant explains that he had been working onsite for the respondent and living in the camp provided by Fortescue Metals Group Pty Ltd (FMG). Some weeks after his dismissal he had a discussion with a work colleague who later gave him contact details for the FMG camp administration.

[7] On 10 April 2014 the applicant emailed the FMG camp administration who then referred him to another FMG contact whom the applicant emailed on 14 April 2014.

[8] The applicant then contacted McMahon directly on 14 April 2014. He followed up on 24 April 2014 having not received a response and again on 28 April 2014.

[9] On 29 April 2014 someone from McMahon rang and spoke to the applicant and told him he could take his concerns about his dispute further if he wanted to.

[10] He then immediately made his application to the Commission.

[11] The applicant says he felt the respondent should have the chance to rectify what he was concerned about before including a third party.

[12] He says he did not have the funds to engage a lawyer.

[13] He says he was unaware of the 21 day application timeframe.

[14] The applicant says that the Easter and Anzac Day long weekends and the time wasted waiting for McMahon to reply was the reason his application is late.

[15] Considering the applicant’s explanation for the delay in making his application, it is well established that not being aware of the 21 day time limit is not an acceptable reason for a delay in making an application.

[16] The applicant took no steps with regards to his dismissal until one day before the 21 day time period elapsed.

[17] From that point onwards for his own reasons he chose to gather information from FMG and only after this directly approached the respondent. The respondent did not reply to his enquiries about his dismissal until 15 days after he first approached them however his enquiry to them was not made until 14 April 2014, three days after the 21 day time limit had elapsed.

[18] The applicant made his own choice as to how to pursue his concerns about his dismissal. His approach of first enquiring of FMG and then waiting for two weeks for the respondent to reply to him before then making this application explains a large part of the delay in making this application. This explanation for the delay however is not an acceptable reason for the delay. Whilst I accept Mr Stothard was well intentioned in pursuing his concerns in the manner he did, applicants are not entitled to determine timeframes of their own within which to make applications based on what they view as the preferred manner of pursuing their concerns about their dismissal with their past employer.

[19] The fact that there were public holidays and long weekends falling within this period is certainly not an acceptable reason for the delay in making the application.

[20] Considering the explanations for the delay in making this application I am not satisfied that there is any acceptable reason for all of the delay in this instance.

Any action taken by the person to dispute the dismissal

[21] The applicant did contest his dismissal with his employer when he contacted them on 14 April 2014 and in follow up calls to the respondent.

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

[22] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[23] There is limited information regarding the merits of the application however it seems likely that the applicant had not complied with his obligations as a resident in the camp and as such it is common place that non compliance with camp rules may be a basis for an employee to be removed from site by their employer. However whether dismissal automatically follows will depend on the circumstances.

[24] Given these matters have not been fully ventilated the question of merit is a neutral factor in terms of this extension of time application.

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

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

Conclusion

[26] 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.

[27] I have considered the information provided and the submissions. In this case there is no acceptable reason for the full delay in making the application however the applicant had contested his dismissal with the respondent. Considering all of the relevant factors there is nothing before the Commission to persuade me that in this case there where exceptional circumstances.

[28] 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.

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

COMMISSIONER

Final written submissions:

Applicant, 4 May 2014.

Respondent, 15 May 2014.

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