Dennis Michael Stewart v The McDonald College Limited
[2009] FWA 1587
•9 DECEMBER 2009
[2009] FWA 1587 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
The McDonald College Limited
(U2009/13325)
COMMISSIONER LARKIN | SYDNEY, 9 DECEMBER 2009 |
Termination of employment – extension of time.
[1] On 28 October 2009 (the applicant) lodged an application pursuant to s.643(1) of the Workplace Relations Act 1996 (the WR Act) on the grounds under s.643(1)(b) of the WR Act alleging that his termination of employment on 30 June 2009 by the McDonald College Limited (the respondent) was unlawful. By letter dated 26 June 2009 the applicant advised the respondent that he was tendering his resignation.
[2] In his application the applicant stated his grounds as follows:
“I worked at the College for a period of almost nine years. An allegation was made against me and as result (sic) it was made clear to me the (sic) presence of my lawyer at a meeting held at the College Chairman’s office that I had two options, one to be fired and the other was to resign. The College Principal was present at this meeting. At no point did my lawyer ever inform me that the IRC was an option that I could take and as a result I spent over $30 000 with no result what so ever (sic).”
[3] The applicant’s substantive application is approximately three months outside the prescribed time limit required by ss.643(14) of the WR Act. The applicant stated the following on this point:
“Due to the intense stress created I was placed in hospital for a period of three weeks due to depression. I am still under a psychiatrists (sic) management and am currently on large amounts of medication. I hired a lawyer who never informed me that I had other alternatives to seek advice from. I am currently in debt and am unemployed. It was only as the result of the response in a letter of complaint about the manner in which I was treated to the NSW Ombudsman that I was informed that I could contact the Industrail (sic) Relations Commission of NSW. I received the letter from the Ombudsman on the 22 October and made contact with them on the 26 October when I was informed of how to contact the IRC. I am still not fully recovered and request that my case be considered and appologise (sic) for my application being so late but I no (sic) idea this was an avenue I could persue (sic). I am more than willing to provide my treating doctors (sic) name together with the name of my psychiatrist. The mental strain has caused me have (sic) one relapse and I cannot find employment.”
[4] The respondent objected to Fair Work Australia extending the prescribed time limit but did not object to conciliation prior to a determination under ss.643(14).
[5] The conciliation conference on 19 November 2009 did not resolve the matter and the applicant’s ss.643(14) application was listed and heard on 2 December 2009.
[6] On 2 December 2009, the applicant was self represented and gave oral evidence. The respondent was represented by Ms. Lovell of the Association of Independent Schools.
CONSIDERATIONS
[7] Subsection 643(14) states:
“An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.”
[8] The relevant principles guiding the exercise of the Commission’s discretion were set out in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 at 299 as follows:
“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[9] The prima facie position is that a prescribed time limit should be complied with unless there is an acceptable explanation for the delay.
Is there an acceptable explanation of the delay which makes it equitable to so extend?
[10] The applicant’s evidence was that he did not know that Fair Work Australia was an avenue that he could pursue and was unaware of a time limit. He stated that while he did speak to a lawyer in July 2009 the lawyer had not advised him in relation to his termination or any time limit. The applicant stated that he was suffering depression and on medication, which lead to loss of memory. In support the applicant tendered letters from his Doctor and his Psychiatrist.
[11] I am not persuaded that the applicant has provided an acceptable explanation for the delay of approximately three months to lodge his substantive application.
[12] Ignorance of the prescribed time limit to lodge an application is not a defence. The applicant was employed as a Deputy Principal by the respondent until his resignation. The applicant is an educated person. I find it extremely difficult to accept that in his discussions with his lawyer sometime in July 2009 the issue of an application for unlawful termination was not discussed if in fact the applicant was of the view that he was terminated unlawfully.
[13] I acknowledge the letters tendered on behalf of the applicant from his Doctor and Psychiatrist, however, the matter before me concerns the applicant’s application to extend the time in which he may lodge his substantive application and his explanation for a delay of three months in his lodgement. During the period from the resignation to the time that the applicant lodged his substantive application, he:
- Sought advice and gave instructions to a lawyer to place a letter of demand on the respondent.
- Conducted a consulting/counselling business.
- Sought, applied and was successful in obtaining a position with another employer in the role of a presenter.
[14] I am not persuaded that the application has an acceptable explanation for the delay in the lodgement of his substantive application.
Action taken by the applicant to contest the termination, other than applying under the Act
[15] I am not persuaded that the applicant took action to contest the termination. While the applicant took action to contest what he considered to be an entitlement to seven weeks notice of termination he did not take action to contest his termination in the form of his resignation. On the material before me the applicant did not and has not sought to withdraw his letter of resignation. Further, on the evidence the application attended a farewell dinner in September 2009, which was approximately three months after he provided to the respondent his letter of resignation.
Prejudice to the respondent including prejudice caused by delay
[16] I am not persuaded by the respondent’s submission as to the prejudice it would suffer if I exercised the discretion to extend the time to lodge the application. The termination of the applicant’s employment occurred approximately five months ago and I am not persuaded that this period is a comparatively long period of time. However, the mere absence of prejudice would not of itself persuade me to extend the time.
The merits of the substantive application
[17] The applicant’s claim is that he was dismissed for an unlawful reason. The respondent disputes the claim and states that the application resigned his employment. My prima facie view on the merit of the substantive application would be that it is doubtful that the claim has merit. However, the merit or otherwise of the claim is but one factor to consider in a determination as to whether or not the discretion to extend the time to lodge the application should be exercised.
Consideration of fairness as between the applicant and other persons in a like position
[18] The parties did not address this factor, therefore, it is a neutral consideration.
CONCLUSION
[19] I am not persuaded that the applicant has provided an acceptable explanation for the delay in lodging his substantive application. The prima facie position is that the time limit should be complied with and I am not positively satisfied that the prescribed period should be extended. In considering the material before me, I am not persuaded that in this case the discretion to extend the period for lodgement and allow the application should be exercised.
[20] I have decided that I will not extend the time limit in which to lodge the application, therefore, the applicant’s substantive applicant is dismissed.
[21] An order reflecting this decision will issue separately.
COMMISSIONER
Appearances:
Mr D Stewart, on his own behalf
Ms C Lovell, Association of Independent Schools, on behalf of the respondent.
Hearing details:
Sydney.
2009:
December, 2.
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