Francis Emmett v Manassen Foods Australia Pty Ltd
[2012] FWA 5174
•22 JUNE 2012
[2012] FWA 5174 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Francis Emmett
v
Manassen Foods Australia Pty Ltd
(U2012/7003)
COMMISSIONER WILLIAMS | PERTH, 22 JUNE 2012 |
Termination of employment - extension of time.
[1] This matter involves an application made by Mr Francis Emmett (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Manassen Foods Australia Pty Ltd (the Respondent).
[2] This matter proceeded to conciliation with a Fair Work Australia Conciliator however the matter was not settled and has been referred for determination.
[3] The Applicant and the Respondent both say that the dismissal of the Applicant took effect and he was notified of the dismissal on 27 March 2012.
[4] The application was made on 11 April 2012.
[5] Section 394 of the Act requires that applications are made within 14 days after the dismissal took effect.
[6] In this instance the application was made 15 days after the dismissal took effect.
[7] Section 394 also provides that Fair Work Australia may allow a further period for the application to be made if satisfied that there are exceptional circumstances.
[8] These provisions are set out below:
“s. 394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA 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 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(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.”
[9] Consequently I wrote to the Applicant advising him that his application was lodged outside the 14 day statutory time period and inviting him to provide any further information relating to this issue and any submissions he wished to make in support of an application for Fair Work Australia to extend the time for the making of his application. This correspondence was emailed and posted to the Applicant.
[10] This correspondence requested that the Applicant provide his information and submissions by Wednesday, 30 May 2012. As at the date of this decision no materials have been provided by the Applicant and there has been no contact from him.
[11] I note that the application itself does not contain any information or submissions relevant to the question of whether there are exceptional circumstances warranting an extension of time to make this application.
[12] The Applicant has not provided any explanation or reason for the delay in making this application and there is nothing before the Tribunal that would suggest that he has taken any other actions to dispute the dismissal.
[13] The Applicant was advised of his dismissal on the same day that it took effect.
[14] There is nothing before the Tribunal regarding the prejudice to the employer if an extension of time was granted.
[15] With respect to the merits of the application it appears that the Applicant was dismissed for absenteeism.
[16] The employer’s response is that in August 2011 the Applicant was absent from work and failed to contact his managers to advise of his non-attendance. In November 2011 the Applicant received a warning for his poor attendance record. In January 2012 a letter was sent to him by the Respondent regarding possible abandonment of employment and asking him to contact his manager at as soon as possible. A final warning was issued to the Applicant for failing to follow company policy regarding absenteeism.
[17] On 27 March 2012 the Applicant was counselled for his absence on the previous day and terminated for his continued poor attendance.
[18] The Applicant argues in the application that a first and final warning that was issued in January 2012 for failing to notify an absence should not apply because the Applicant says he did contact his supervisor via his mobile phone at the first available opportunity and he had a medical certificate for the period of absence.
[19] The parties obviously have different views of the factual background that led up to the dismissal and the seriousness or relevance of the Applicant’s various absences. Consequently for the purposes of considering whether or not an extension of time should be granted the merits of the application are a neutral consideration.
[20] There is nothing before the Tribunal regarding fairness as between the Applicant and other persons in a similar position.
[21] In conclusion there is nothing before the Tribunal that would satisfy me that there are exceptional circumstances that would justify extending the period of time in which to make this application.
[22] The application has been made outside the 14 day statutory time period and so has not been properly made. The application must now be and is dismissed.
[23] An order to that effect will now issue.
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