Derek Moore v S & L Hardware WA

[2014] FWC 7633

[2014] FWC 7633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Derek Moore
v
S & L Hardware WA
(U2014/11195)

COMMISSIONER WILLIAMS PERTH, 30 OCTOBER 2014

Termination of employment - extension of time.

[1] Mr Derek Martin Douglas Moore (Mr Moore 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 S & L Hardware WA (the respondent).

[2] Mr Moore was dismissed on 25 June 2014. The application was made on 24 July 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 permit 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 of the Act.

“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 Mr Moore in support of the Commission allowing a further period for this application to be made. The respondent whilst expressing sympathy for Mr Moore’s difficulties opposes an extension of time being allowed.

Are there exceptional circumstances?

The reason for the delay

[6] Mr Moore has explained that on Friday, 27 June 2014, two days after his dismissal, he received a telephone call from the Royal Perth Hospital to advise that his brother David was in a critical condition in the intensive care unit.

[7] Mr Moore explains that from this day onwards he was at his brother’s bedside on a daily basis until he subsequently passed away on 7 July 2014.

[8] Mr Moore’s brother was the last surviving immediate family member as both their parents and his other brother are already deceased. Mr Moore says this made the situation more difficult for him to deal with.

[9] Mr Moore has provided the Commission with a copy of a Western Australian Death Certificate which confirms the date of death of Mr David Moore as 7 July 2014 and which states that Mr David Moore was cremated on 21 July 2014.

[10] After his brother’s death Mr Moore had to make arrangements for his funeral, clean his house, remove all of his belongings and take care of all his financial affairs.

[11] Mr Moore admits that because of this unfortunate situation he was unable to focus on the task of lodging his application for unfair dismissal in a timely manner.

[12] I note that this application was made three days after the funeral.

[13] Considering these reasons for the delay as explained by Mr Moore I accept these are acceptable reasons for all of the eight day delay in making this application.

Whether the person first became aware of the dismissal after it had taken effect

[14] Mr Moore was aware of his dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[15] Mr Moore has not otherwise sought to dispute his dismissal.

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

[16] There is no particular prejudice to the respondent if a further period to apply was allowed.

The merits of the application

[17] There is conflict between the parties as to the circumstances surrounding the dismissal and whether or not the directions given to Mr Moore were reasonable in the circumstances and whether or not his refusal to follow those directions was reasonable in the circumstances.

[18] Consequently until all the evidence is heard from the parties over these matters it is not possible to form a view about the merit of the substantive application and for the purposes of this extension of time question the merits are a neutral consideration.

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

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

Conclusion

[20] In this case Mr Moore has acceptable reasons for the delay in making his application. The reasons for the delay in my view do amount to exceptional circumstances.

[21] Given the existence of exceptional circumstances I have decided to exercise the discretion available to allow a further period for this application to be made. An order to that effect will be issued in conjunction with this decision.

[22] Mr Moore’s application will be referred to a Fair Work conciliator for conciliation and the parties will be advised in due course of a time and date for that conciliation conference to be held.

COMMISSIONER

Final written submissions:

Applicant, 12 August 2014.

Respondent, 25 August 2014.

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