Edward Cruz v Kwik TSP & Crane Hire Pty Ltd T/A Kwik on Demand Transport & Crane Hire

[2014] FWC 9082

[2014] FWC 9082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward Cruz
v
Kwik TSP & Crane Hire Pty Ltd T/A Kwik On Demand Transport & Crane Hire
(U2014/8795)

COMMISSIONER WILLIAMS PERTH, 16 DECEMBER 2014

Termination of employment - extension of time.

[1] Mr Edward Dangla Cruz (Mr Cruz 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 Kwik TSP & Crane Hire Pty Ltd T/A Kwik On Demand Transport & Crane Hire (Kwik or the respondent).

[2] Mr Cruz was notified of his dismissal and it took effect on 18 July 2014. The application was made on 15 August 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 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] Both parties have provided written materials in support of their view on the extension of time question. Mr Cruz has provided a statement of facts with supporting submissions by his representative Mr Mullally. Whilst the respondent does not agree with all of the facts as stated by Mr Cruz those particular facts that are relevant for the purposes of this decision are not contested.

Are there exceptional circumstances?

The reason for the delay

[6] Mr Cruz states that he was dismissed on Friday, 18 July 2014. He says the following Tuesday morning, 22 July 2014 he attended the offices of his union, the Construction, Forestry, Mining and Energy Union (the CFMEU). He met with the CFMEU’s industrial lawyer and explained what had happened. He was told that the CFMEU would send out a representative to talk to Kwik.

[7] Kwik state that on Wednesday, 23 July 2014 a representative of the CFMEU attended their premises and they discussed the applicant’s dismissal.

[8] Mr Cruz says that several days after having met with the CFMEU he was contacted by the CFMEU and asked to come into their office. Mr Cruz attended the CFMEU’s office the following day and he was told by them that his case was unwinnable. Mr Cruz demanded to see the CFMEU’s lawyer but he refused to see Mr Cruz. The CFMEU representative told Mr Cruz that the best he could do was to have the misconduct removed from his record but Mr Cruz do not agree to that.

[9] Mr Cruz states the CFMEU did not tell him of his rights and the need to file an application within 21 days of the dismissal.

[10] Mr Cruz states he left the CFMEU’s office and was in shock and that he could not think of what to do and became depressed remaining in his unit at home for days on end just brooding on how he had been betrayed by the CFMEU.

[11] Mr Cruz states that on 13 August 2014 he had to attend a case assessment conference at the Family Court. He says the Family Court lawyer encouraged him to go to the Commission over his dismissal. Mr Cruz says the following day, 14 August 2014, he sent an SMS message to a friend to ask about private assistance and told him the CFMEU would not help them. His friend gave him the number of Workclaims Australia whom he phoned and arranged to meet with Mr Mullally on Friday, 15 August 2014. After explaining his circumstances Mr Mullally on his behalf that day filed this application for unfair dismissal.

[12] Mr Cruz subsequently attended his general practitioner who has provided a letter dated 11 September 2014 that states that Mr Cruz has been feeling depressed since 18 July 2014 when he lost his job. The doctor states that Mr Cruz would benefit from counselling sessions with a psychologist to help them through this period.

[13] On behalf of Mr Cruz it is submitted that the delay can be explained in three ways. Firstly, it is submitted that there was a form of representative error by omission in the CFMEU not putting the applicant on notice as to his rights and the 21 day time limit. Secondly, the applicant was depressed which is supported by a medical certificate dated 11 September 2004. Finally, the applicant was distracted by his Family Court proceedings.

[14] I now turn to consider the reasons for the delay in making this application.

[15] With respect to the submission that the CFMEU had committed a representative error the facts are that the CFMEU advised Mr Cruz that his application was unwinnable. The CFMEU proposed a different course of action, to have a misconduct dismissal removed from his record, which Mr Cruz rejected. Mr Cruz clearly understood from around Friday, 25 July 2014 that the CFMEU would not represent him and would not pursue an unfair dismissal claim for him. In those circumstances I am not satisfied that what occurred here amounts to a representative error.

[16] If I am wrong and there was a representative error this occurred when there was approximately a further two weeks within which Mr Cruz could have made this application and done so within the 21 day time period. The evidence is Mr Cruz, knowing the CFMEU was not representing him, took no action during the remaining period to make any enquiry as to how he could pursue an unfair dismissal claim or otherwise seek advice or assistance to do so. Mr Cruz only acted on the advice of others on 14 August 2014 well after the 21 day time period past.

[17] With respect to the submission that the applicant was depressed there is no medical evidence to support a conclusion that Mr Cruz was so affected by depression that this prevented him from making this application within 21 day time period. Noting the doctors statement that Mr Cruz had been depressed from the day he lost his job the evidence of Mr Cruz himself is that he was quite capable of interacting with the CFMEU to the extent of meeting with them on two occasions, he was able to participate in a Family Court conference and was able to contact Workclaims Australia and meet with their representative. All of these actions demonstrate that Mr Cruz’s mental health was not so poor that it prevented him from making this application within the 21 day period.

[18] With respect to being distracted by the Family Court proceedings, I note the only statement from Mr Cruz as to his obligations in this regard was that he had to attend a conference on 13 August 2014. This occurred obviously on a date which was well after the 21 day period in which Mr Cruz was required to make this application.

[19] Considering then the reasons for the delay in making this application I am not satisfied at all that these reasons are acceptable reasons for all of the delay in this instance.

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

[20] Mr Cruz was aware of his dismissal at the same time it took effect.

Any action taken by the person to dispute the dismissal

[21] Mr Cruz did dispute his dismissal to the extent of raising his complaint with the CFMEU.

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

[22] 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

[23] Both parties have provided information regarding the circumstances surrounding Mr Cruz’s dismissal. There are clear disagreements between the parties on the relevant facts. Consequently in a preliminary proceeding such as this the Commission is limited in drawing any final conclusions as to the merits of Mr Cruz’s substantive application.

[24] The merits of his case are a neutral factor for the purposes of considering the extension of time matter.

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

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

Conclusion

[26] 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.

[27] I have considered the information provided and the submissions. In this case there are not acceptable reasons for the full delay in making the application. The fact that Mr Cruz disputed his dismissal by pursuing his complaint to his union is not sufficient in my view, considering all the other factors, for the Commission to find that there were exceptional circumstances.

[28] 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.

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

COMMISSIONER

Final written submissions:

Applicant, 12 September 2014

Respondent, 1 October 2014

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