Edward George Warrell v Bacto Laboratories Pty Ltd

[2011] FWA 6184

Note: An appeal pursuant to s.604 (C2011/5891) was lodged against this decision - refer to Full Bench decisions dated 8 November 2011 [[2011] FWAFB 7548] and 5 June 2012 [[2012] FWAFB 4700] for result of appeal.

[2011] FWA 6184

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward George Warrell
v
Bacto Laboratories Pty Ltd
(U2011/9217)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 12 SEPTEMBER 2011

Application for extension of time and application for unfair dismissal remedy.

[1] Mr Warrell’s employment was terminated by letter dated 16 March 2011. Mr Warrell filed this application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 24 June 2011. His application was lodged 12 weeks and 2 days beyond the 14 days for lodgement prescribed by the Act.

[2] I heard Mr Warrell’s application for an extension of time for lodgement as well as the merits of his substantive application on 7 September 2011 in Sydney.

[3] Mr Warrell represented himself. Mr Butterfield, a solicitor from Marsdens Law Group, represented Bacto Laboratories Pty Ltd (Bacto).

[4] Mr Warrell has difficulties with reading and writing. At my suggestion Bacto consented to present their case first to make it easier for Mr Warrell to conduct his application. Mr Warrell gave evidence in his own case, with handwritten material and submissions prepared by his previous solicitors. Bacto called a Mr Carter and a Mr Marshall who both provided statements.

[5] Subsection 394(3) of the Act is set out below.

“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[6] I have given consideration to Mr Warrell’s reason for delay.

[7] Mr Warrell gave evidence that he placed all of his information in an envelope and posted it to the Fair Work Ombudsman by mistake. He had intended to forward it to Fair Work Australia. He said that he had made a mistake and filed with the wrong entity. It is not clear to me when this took place.

[8] Mr Warrell is undoubtedly impaired in relation to written applications and correspondence because of his inability to read and write comprehensively. Balanced against that is the fact that Mr Warrell had already filed an application before Fair Work Australia prior to the lodgement of this application. That application had been filed with the correct entity and was still an outstanding application at the time Mr Warrell attended a conciliation before me. Mr Warrell had already participated in a conciliation before a Fair Work Conciliator in the previous application.

[9] There is nothing about the date on which Mr Warrell first became aware of his dismissal which would affect my decision, and neither is there any action taken by Mr Warrell to dispute the dismissal which would be significant.

[10] There is no prejudice to Bacto caused by this delay except for the ordinary obligation on Bacto to conduct their defence of Mr Warrell’s application.

[11] There is no matter involving fairness as between Mr Warrell and some other person for me to consider.

[12] The most significant matter for me, in my consideration of Mr Warrell’s application for an extension of time was the merit of his application. I heard Mr Warrell’s substantive application at the same time as I heard his application for an extension of time.

[13] The absence of merit in Mr Warrell’s application was particularly significant. I have concluded that Mr Warrell’s application is without merit. I accept Mr Carter’s evidence regarding Mr Warrell’s conduct. I do not consider that Mr Warrell was a witness of truth in relation to the matters about which Mr Carter gave evidence. I am satisfied that Mr Warrell engaged in gross misconduct in his interaction with Mr Carter and that there was a valid reason for the summary termination of his employment. Mr Warrell’s application would fail on the evidence before me were I to extend the time.

[14] Should there be an error in my conclusion that there is no exceptional circumstance warranting an extension of time, I am also satisfied that there was a valid reason for the termination of Mr Warrell’s employment. The termination of Mr Warrell’s employment was not harsh unjust or unreasonable.

SENIOR DEPUTY PRESIDENT

Appearances:

G Butterfield, solicitor, represented the Respondent

Mr E Warrell represented himself

Hearing details:

Sydney
September 7
2011

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