Derek Johnson v Monadelphous KT Pty Ltd

[2014] FWC 3734

[2014] FWC 3734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Derek Johnson
v
Monadelphous KT Pty Ltd
(U2014/6544)

COMMISSIONER WILLIAMS PERTH, 5 JUNE 2014

Termination of employment – extension of time.

[1] Mr Derek Johnson (the applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) asserting that he had been unfairly dismissed by Monadelphous KT Pty Ltd (the respondent).

[2] The application was lodged on 15 April 2014. The application states the applicant was notified of his dismissal on 3 February 2014 and that his dismissal took effect on 7 February 2014.

[3] Section 394(2) and (3) of the Act provides that:

“(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 application was made after the 21 day time limit.  This decision deals with whether or not a further period should be allowed for the applicant to make the application.

[5] I turn to consider the particular factors specified in section 394(3) of the Act.

Section 394(3)(a)

[6] The applicant has included in his application the reason for the delay in making his application.

[7] The applicant was requested to provide any further evidence or supporting submissions for his extension of time application however nothing further has been received beyond what was included in his original application.

[8] The reason for the delay as explained by the applicant was that he was advised he had a case regarding unfair dismissal on the 21st day after his redundancy. On 28 March 2014 he completed the application and registered with the Commission’s efiling service but was not able to upload the documents and after numerous attempts stopped trying.

[9] The following day he had to travel overseas and was unable to retry uploading the documents so upon his return he submitted his application by post.

[10] The applicant has not explained why he had to travel overseas or nor whether whilst overseas he had access to the Internet or a telephone.

[11] If indeed there was a problem with the Commission’s efiling system that would explain why he was not able to file his application when he first tried to but does not explain why he delayed this until well after the 21 days has passed..

[12] There is no evidence that whilst overseas the applicant was prevented from lodging his application either again through the efiling system or alternatively by email or by post or by telephone. All of these alternative methods of making an application are explained on the Commission’s website. Consequently I do not accept that travelling overseas is a satisfactory explanation for the balance of the delay in this matter.

Section 394(3)(b) and (c)

[13] The applicant apparently was aware of the fact he was to be dismissed before the date it took effect. The applicant has taken no other action apparently to dispute his dismissal.

Section 394(3)(d)

[14] The delay is not long in this instance and is unlikely to prejudice the respondent.

Section 394(3)(e)

[15] In terms of the merits of the application obviously this has not been debated before the Commission however the respondent objects to the application on the grounds that the dismissal was a genuine redundancy and separately that the applicant is not able to make an unfair dismissal application because he is neither covered by a modern award nor an enterprise agreement and his annual rate of earnings being in excess of $360 000 per annum is higher than the high income threshold of $129 000 per annum.

[16] Separately I note that the applicant identifies himself as Construction Manager when he has signed his application. Consequently it seems on balance more likely than not that even if this application proceeded it would be dismissed for either or both of the jurisdictional reasons the respondent has identified.

Section 394(3)(f)

[17] The issue of fairness compared to other is not relevant.

Conclusion

[18] Considering all of these matters I do not accept there are exceptional circumstances in this case that would warrant allowing an extension of time to the applicant. Consequently the application is made out of time and will now be dismissed.

[19] An order to that effect will now be issued.

COMMISSIONER

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