Garth Vidler v Albert Smith and Sons Pty Ltd T/A Albert Smith Group

[2012] FWA 9936

[2012] FWA 9936

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Garth Vidler
v
Albert Smith and Sons Pty Ltd T/A Albert Smith Group
(U2012/12142)

COMMISSIONER MCKENNA BRISBANE, 23 NOVEMBER 2012

Application for unfair dismissal remedy - application out of time - application dismissed.

[1] Garth Vidler (“the applicant”) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy. The applicant considers that his employment with Albert Smith and Sons Pty Ltd T/A the Albert Smith Group (“the respondent”) terminated by constructive dismissal on 24 July 2012, although that is contested by the respondent.

[2] The conciliation by telephone before a Fair Work Australia conciliator did not proceed, apparently because the applicant could not be contacted. In emailed correspondence to Fair Work Australia’s Unfair Dismissals Team (“UDT”), the applicant subsequently advised he did not want to proceed with the application. As a result, the UDT forwarded a notice of discontinuance to the applicant. After the UDT forwarded a notice of discontinuance to the applicant, he advised the UDT the notice of discontinuance had “reignited” his interest in pursuing the application.

[3] In consequence, the UDT issued standard directions concerning an extension of time conference/hearing given the application had been filed out of time. The parties each lodged short written submissions pursuant to the directions. Those submissions were elaborated upon in the proceedings in Brisbane on 22 November 2012.

Submissions

[4] The applicant’s submissions noted the application had been lodged one day late. The applicant submitted that on 24 July 2012 he was sent home “ashamed, embarrassed, confused, afraid and in a state of frustration and worry” regarding his career prospects and ability to meet his financial commitments. The applicant considers he was constructively dismissed on 24 July 2012 (and it was common ground this was the last day of employment).

[5] The applicant submitted that in the week following 24 July 2012 he carried out a series of tasks. These included communicating with the respondent’s human resources officer; discussing matters and options with family, friends and Fair Work Australia; devoting the bulk of his time to applying for new jobs; and undertaking a range of other related things.

[6] The applicant submitted he did not realise there was a process of making a complaint to Fair Work Australia for several days after 24 July 2012. The applicant read material about the time period of 14 days for making an application for an unfair dismissal remedy, which, at that time, he noted as being an unreasonably short period. The applicant submitted that among making applications, attending interviews and working in casual employment, he pulled his “emotions and schedule together” to read information on the Fair Work Australia website. The applicant was critical of the manner in which information was presented on the website.

[7] The applicant submitted he then made a decent effort at listing the broad and many issues he suffered while employed by the respondent; he then managed to lodge the application, albeit one day late. The applicant was critical of the fact he should have to establish why the application should be accepted out of time, describing it in his submissions as madness. The applicant submitted he would be speaking to someone else about the “insanity of this time period”, and he could think of more than a few individuals who would be interested.

[8] The applicant submitted in closing: “So in short (I suppose, if I must) due largely to overwhelming emotional strain and a range of imminently urgent tasks related to not only the loss of a job but to an unfair and potentially damaging dismissal I was unable to complete the complaint within the 14 days.” In the proceedings, the applicant re-emphasised, among other matters, the personal and financial struggles he had to deal with; the lack of certainty concerning the termination of the employment relationship; the communications between the parties following 24 July 2012; and the shortness of the delay in making the application.

[9] The respondent submitted the last date of employment was 24July 2012, with a formal resignation tendered subsequent to that date. The respondent submitted it did not know why the applicant had lodged an application for an unfair dismissal remedy or why it was lodged outside the required 14 day timeframe.  The respondent submitted that it considered the applicant had ample time to lodge his application within the relevant timeframe. The respondent did not consider the applicant’s reasons for the delay were substantial.

Consideration

[10] Section 394 of the Act deals with the time for making an application for an unfair dismissal remedy and extensions of time in the following terms:

“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.

(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.”

[11] It appears that “several days” after the (alleged constructive) dismissal on 24 July 2012, the applicant became aware he could make an application for an unfair dismissal remedy. It appears the applicant was in communication with Fair Work Australia from around this time. The applicant also read materials on the Fair Work Australia website, including the advice about the time period for making an unfair dismissal application. The applicant, by then apparently aware of the timeframe for making an application for an unfair dismissal remedy, considered it to be an unreasonably short period.

[12] The applicant’s reasons for the delay were attributed to matters which he described, in short form, as being unable to make the application in time due largely to overwhelming emotional strain and a range of imminently urgent tasks related to not only the loss of a job but to an unfair and potentially damaging dismissal.

[13] The applicant was aware of the date of the (alleged constructive) dismissal, as 24 July 2012 was the date he determined as being the date of the termination of employment - albeit a formal resignation was not provided until after that date.

[14] The communications with the respondent’s human resources officer may be considered, I think, to constitute action taken by the applicant to dispute the (alleged constructive) dismissal, albeit there was little detail as to such matters in the proceedings.

[15] The prejudice to the respondent in relation to a late lodgement by one day would be minimal or non-existent.

[16] The merits of the application are contested, with the applicant contending he was constructively dismissed and the respondent submitting the applicant had left of his own accord. I regard this as a neutral matter.

[17] Nothing, or nothing of relevance to the late lodgement, was advanced by either party as to fairness as between the applicant and other persons in a similar position.

[18] Section 394 of the Act provides that Fair Work Australia may allow a further period for the application to be made if satisfied as to the existence of exceptional circumstances, considered in the context of the statutory criteria. It may be noted the applicant was aware of the timeframe for making an application, prior to the expiry of that timeframe. Without any disrespect to the personal travails described in the applicant’s written submissions, and further described with conviction in the proceedings, such matters would not, on the authorities, be considered to be, for example, out of the ordinary considering the principles to be applied concerning extensions of time. I have also considered the fact that the delay in lodgement was only one day.

[19] The applicant has not established a case of exceptional circumstances such as to lead to the grant of an extension of time. As such, an order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

G. Vidler in person.

R. Ertel for Albert Smith and Sons Pty Ltd.

Hearing details:

2012.

Brisbane:

22 November.

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