Dominic Addai v NRW Civil & Mining

[2014] FWC 2266

[2014] FWC 2266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dominic Addai
v
NRW Civil & Mining
(C2014/3366)

COMMISSIONER WILLIAMS PERTH, 8 APRIL 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Dominic Addai (the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] The application states that the applicant was dismissed on 17 January 2014. The applicant has made this application on 7 March 2014. The application was made after the 21 day time limit had passed.

[4] Consequently I wrote to the applicant explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submission to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] The applicant has provided a written submission and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

The reason for the delay

[6] The applicant submits that on 14 January 2014 he was given an “unofficial” redundancy letter which was not signed by his Supervisor. The letter states that after discussions with the applicant he was being formally advised that his position became redundant on 17 January 2014.

[7] The applicant in his materials explains that he complained about this letter and consequently met the respondent’s Human Resources Officer Ms Meghani on 20 January 2014 and she said would look into things and arranged for a signed copy of that same letter to be sent to him which he received on 28 January 2014. He then received his separation certificate on 31 January 2014.

[8] The applicant explains that prior to all those enquiries he had contacted the Commission and requested application forms be sent to him.

[9] The applicant next complained to another staff member within the respondent who had dealt with some of his workers compensation matters.

[10] He then delivered a letter of complaint to a Ms Glasson at the respondent’s office on 30 January 2014. Ms Glasson listened to the applicant’s whole story and said she would speak to the staff at the mine and get back to him.

[11] The applicant has as above provided reasons as to why he did not make an application between 14 January 2014 and 30 January 2014 however the applicant has not provided any reason why he waited for a further period of approximately 5 weeks having heard nothing more from the respondent before making this application on 7 March 2014.

[12] The applicant says on Monday, 3 March 2014 he met a lawyer who advised him that even though the 21 days to lodge the application had passed there are exceptions to this. It may well be that the applicant had not filed his application earlier because he believed he was too late given the 21 days had passed however in any event there is no explanation as to why having received the advice from a lawyer on Monday, 3 March 2014 he did not make the application until the following Friday, 7 March 2014.

[13] The fact that an applicant is not aware of his rights under the legislation is not an acceptable reason for a delayed application having been made.

[14] Considering the applicant’s reasons for delay as submitted there are not acceptable reasons for the all of the delay in this instance.

Any action taken by the person to dispute the dismissal

[15] The applicant did contest his dismissal by pursuing his complaints with the respondent’s Human Resource Officers.

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

[16] This is not a case given the length of delay and the circumstances where there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[17] There is little information about the reasons for the applicant’s dismissal other than the explanation and letter of termination that the applicant’s position has been made redundant. It should be noted that a genuine redundancy under the legislation cannot be an unfair dismissal.

[18] Given the limited information in this instance it is not possible to determine the merit of the substantive application so the issue of merit for the purposes of this extension of time decision is neutral.

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

[19] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[20] 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.

[21] I have considered the information provided by the applicant and having regard for the relevant factors here I am not satisfied that this case involves exceptional circumstances. The applicant has not provided an acceptable reason for all of the delay and none of the other matters are of such moment that they amount to exceptional circumstances.

[22] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

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

COMMISSIONER

Final written submissions:

Applicant, 23 and 24 March 2014

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