Dylan Parker v Hire Intelligence International Pty Ltd

[2015] FWC 215

[2015] FWC 215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dylan Parker
v
Hire Intelligence International Pty Ltd
(U2014/12901)

COMMISSIONER WILLIAMS PERTH, 9 JANUARY 2015

Termination of employment - extension of time.

[1] Mr Dylan Parker (Mr Parker or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Hire Intelligence International Pty Ltd (the respondent).

[2] Mr Parker was dismissed on 3 September 2014 and the dismissal took effect that day. The application was made on 30 September 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 section 394 of the Act below.

“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 Parker regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] Mr Parker was dismissed by his employer the day before he was to commence a period of annual leave. Mr Parker continued with his planned holiday and traveled to Europe. He says this put him in an awkward position and did not allow him sufficient time to make an application before his departure. During his travels he was not in one place for more than three days and was without access to a computer or a telephone.

[7] Mr Parker has not advised on what date he returned to Perth. I note that the onus is on Mr Parker to provide sufficient evidence or information to the Commission to support the conclusion that there were exceptional circumstances warranting an extension of time being allowed.

[8] Mr Parker says that he has not made an application to the Commission before and was not aware of the time limitations. He did attempt to reason with his employer immediately after his dismissal but was not aware that he should have immediately made a claim with the Commission and it was only after his own research did he find the Commission for assistance.

[9] Considering Mr Parker’s explanation for the delay in making this application it can be appreciated that Mr Parker was placed in an awkward position having been dismissed the day before he was about to leave the country on his planned holiday to Europe. He did however have a choice as to whether he continued with his planned holiday or not or perhaps delayed his departure. Whilst it may have been a difficult decision for him he did have the option of remaining in Australia and making this application rather than leaving the country as he did.

[10] Separately he also had the option of continuing with his holiday as he did but making an application whilst he was away. The Commission allows applications for an unfair dismissal remedy to be made by telephone, online lodgement, email, facsimile or post. It is more likely than not that throughout his time in Europe he would have been able to obtain access to either a telephone or a computer to allow an application to be made if he had chosen to do so.

[11] Finally the fact that Mr Parker was unaware that the Commission could potentially assist him and was not aware of the time limits for making an application is not an unusual circumstance. Employees often are not aware of these matters and the case law is clear that being unaware of the statutory time limits for applications is not an acceptable reason for the delay in making an application.

[12] Considering the explanations for the delay in making this application I am not satisfied that there is an acceptable reason for the whole of the period that the application was delayed in this instance.

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

[13] Mr Parker was made aware of his dismissal on the same day that it had effect.

Any action taken by the person to dispute the dismissal

[14] The applicant did dispute with his employer at the time of the dismissal the manner in which notice was proposed to be given by his employer but apparently not the reasons for the dismissal.

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

[15] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[16] The reasons for Mr Parker’s dismissal were contained in a letter which was both a third formal warning and a termination letter. This further details a significant number of complaints the respondent apparently had with Mr Parker’s performance and behaviour over an extended period. From his application it is clear that Mr Parker contests the reasons for his dismissal.

[17] As is commonly the case when the Commission is considering an extension of time application it is not possible at this stage on the limited information available to form any clear view as to the merits of Mr Parker’s application. Consequently for the purposes of considering whether an extension of time should be allowed to make this application beyond the 21 day time limit the merits of this application will be a neutral factor.

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

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

Conclusion

[19] 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.

[20] I have considered the information and submission provided by the applicant. In this case there is not an acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[21] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

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

COMMISSIONER

Final written submissions:

Applicant, 20 October 2014.

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