Desmond Butterly v Boldstate Corporation T/A Kalamunda Patisserie

[2014] FWC 5774

[2014] FWC 5774 [Note: An appeal pursuant to s.604 (C2014/6345) was lodged against this decision - refer to Full Bench decision dated 30 October 2014 [[2014] FWCFB 7474] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Desmond Butterly
v
Boldstate Corporation T/A Kalamunda Patisserie
(U2014/7783)

DEPUTY PRESIDENT MCCARTHY PERTH, 25 AUGUST 2014

Application for relief from unfair dismissal - extension of time.

[1] Mr Desmond Butterly (the Applicant) lodged and Unfair Dismissal Application (the Application) on 8 June 2014. The Application states that he was dismissed from his employment with Boldstate Corporation trading as Kalamunda Patisserie (the Respondent). The Application also states that the dismissal took effect on 21 March 2014. The Application was therefore clearly lodged outside the 21 day time limit allowed by s. 394(2)(a) by the Fair Work Act 2009 (the FW Act).

[2] The Applicant recognised that the Application was lodged outside the required time and stated that:

“I took the following steps to dispute the dismissal

I received my formal letter of dismissal on 17/3

I sent an email requesting further information on 18/3

I received a response to this email on 21/3

I sent an email requesting further information on 23/3

I sent reminder emails on 7 and 22/4

I received a reply to my email of 23/3 on 22/4

I sent a letter by email on 2/5 outlining my complaints

I sent a reminder email on 22/5

To date I have not received a reply to my email of 2/5”

[3] On 19 June 2014, I wrote to the Applicant and requested that he provide me with information in respect of those matters I must consider in determining whether I should allow a further period for the Application to be lodged beyond the 21 days allowed.

[4] The Applicant responded to my request on 1 July 2014. He also provided documentation in support of his responses. His responses were as follows:

“(a) the reason for the delay;

I was trying to resolve the issue directly with my past employer.

(b) whether the person first became aware of the dismissal after it had taken affect;

Not Applicable 

(c) any action taken by the person to dispute the dismissal; 

As can be seen from the correspondence, I have tried to resolve the issue directly with my past employer. All my correspondence has been relevant and timely.

(d) prejudice to the employer (including prejudice caused by the delay); 

My past employer can’t be prejudiced by allowing my application to proceed, as I have tried to sort out the issue with my past employer in a timely manner.

(e) the merits of the application; 

There are merits to the application as set out in my letter of 2nd May.

(f) fairness as between the person and other persons in a similar position.

I can’t comment on this condition.”

[5] I then gave the Respondent the opportunity to provide me with any material they may wish to provide regarding any extension of time for the Application to be lodged. The Respondent provided material in reply to the Applicant’s material. The material provided by the Respondent addressed the events relating to the dismissal itself, but did not address the matters I need to consider regarding any extension of time.

Consideration

[6] The Applicant states that the reason for the delay was that he was trying to resolve the issue directly with the Respondent. Whilst I accept that this was the reason, or at least a significant element of a reason, I do not consider this to be a reason in the circumstances here that weighs in favour of the Applicant as there is nothing exceptional about such a circumstance.

[7] The Applicant stated that he was informed of his dismissal on 15 March 2014 and it took effect on 21 March 2014. This fact does not weigh in favour of a finding of there being exceptional circumstances.

[8] In regards to the action taken to dispute the dismissal the Applicant states that he tried to resolve the issue directly with the Respondent. He provided material that supported that contention and also his contention that he had been timely and that the material was relevant to the actions he took. I accept that the Applicant made these efforts and also that he made them in a timely manner. I also accept that the Applicant genuinely endeavoured to resolve the issues relating to his dismissal. I do not however accept that the efforts, whilst commendable, support a finding of there being an exceptional circumstance.

[9] The Applicant asserted that the Respondent would not be prejudiced if an extension were allowed. I consider that there will be some prejudice although not such that it would weigh in favour of the Respondent in my findings. The merits of the Application rely on the facts asserted by the Applicant and those asserted by the Respondent. The facts are strongly contested by both sides and without a full hearing and findings in relation to those facts I am not in a position to weigh the merits of the case in either parties favour.

[10] I do not consider that it would be fair between the Applicant and other persons in a similar position if the Application were to be allowed.

[11] I find that exceptional circumstances do not exist and I will not allow an extension of the time allowed for the Application to be lodged. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 1 July 2014.

Respondent, 20 August 2014.

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