Gary Whetton v Strathony Pty Ltd T/A Supabarn

[2014] FWC 2506

[2014] FWC 2506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gary Whetton
v
Strathony Pty Ltd T/A Supabarn
(C2014/3156)

COMMISSIONER DEEGAN CANBERRA, 14 APRIL 2014

Application to deal with contraventions involving dismissal.

[1] On 27 March 2014 in a decision issued in transcript, I refused to extend the time for lodgement of an application made by Mr Gary Whetton (the applicant) pursuant to s365 of the Fair Work Act 2014 (the Act). These are the reasons for that decision.

[2] The applicant filed his s.365 application on 20 February 2014. The application disclosed that his employment with Strathony Pty Ltd trading as Supabarn, was terminated with effect from 24 December 2013. Section 366 of the Act requires an application under s.365 to be made within 21 days of the termination taking effect. The application in this matter was made 37 days after the expiration of that time limit.

[3] On 8 January 2014 the applicant lodged an unfair dismissal claim in the Fair Work Commission (the Commission). The employer was notified of that claim on 5 February 2014 and that day lodged an objection to jurisdiction on the basis that the applicant did not meet the minimum employment period set out in s.383 of the Act. That objection was served on the applicant on 5 February 2014. On 20 February 2014 the applicant withdrew the unfair dismissal application and lodged the s.365 application. In a letter accompanying this application the applicant noted that it was being filed more than 21 days after the dismissal took effect ‘‘due to the delay in my original Unfair Claim and should be considered relevant as it pertains to this claim.’’  1

[4] The employer response to the applicant’s general protections claim was filed on 27 February 2014. The employer objected to the claim as it was filed outside the statutory time limit but did not object to conciliation taking place prior to the consideration of that objection. The applicant filed a response to the employer’s Form F8A and, in particular, stated that his ‘‘lodgement for general protections is in response to the delay and time taken on my original claim of unfair dismissal to which I strongly believe was the right avenue based on the way I was terminated and the reasons given (as per termination letter).’’ 2 He also noted that the unfair dismissal matter was lodged within the 21 day time period allowed under the Act.

[5] The conciliation conference was listed for 21 March 2014. The employer appeared but the applicant did not. He advised that his car had broken down and that he would be delayed. The conference was postponed and the applicant requested to keep the Commission advised of his anticipated arrival time. He made no further contact with the Commission. The employer waited for some hours to participate in a conference but, when it was clear that the applicant was unlikely to arrive and proved un-contactable, the conference was eventually abandoned. Efforts made to contact the applicant proved fruitless. The matter was then listed for a telephone hearing to deal with the matter of the failure to lodge within the statutory time limit. The applicant was notified of the hearing and requested to provide a contact number on which he could be reached for that purpose. The applicant made no further contact with the Commission and did not respond to emails or telephone messages left for him.

[6] No contact could be made with the applicant on the day of the hearing and, as advised to the applicant by way of email, the hearing proceeded in his absence on the basis of the documentation filed and the submissions of the respondent.

[7] The applicant’s only explanation for the delay in filing related to the earlier filing of the unfair dismissal application. Although advised by the employer on 5 February 2014 that it was objecting to the jurisdiction of the Commission to deal with that claim as the applicant did not meet the minimum employment requirement the applicant did nothing until 20 February 2014, over two weeks later. The applicant gives no explanation for this further delay.

[8] Section 366 of the Act provides:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[9] The employer, who was represented at the hearing, objected to additional time being allowed for the filing of the application.

[10] The application is this matter was made 58 days after the dismissal took effect. While the unfair dismissal application was made within the requisite time period this application was not. Even if I accepted that the earlier application which failed on jurisdictional grounds constituted an acceptable reason for the delay for the period until 5 February 2014, there is no reason for the further delay in the filing of the application until 20 February.

[11] I accept that the applicant took some action to contest the dismissal with his employer and that there is little, if any prejudice caused to the employer by the delay in filing. So far as the merits of the application are concerned I note that documentation filed by the applicant states that the more appropriate route for contesting his dismissal is by way of an unfair dismissal application but that this avenue is not available to him. Given the paucity of the evidence before me at this point of the proceeding I am unable to conclude that the application is totally without merit. I do not believe the criterion at s.366(2)(e) has any application to this matter.

[12] In all the circumstances and taking all those matters set out above into account I am unable to find that there are any exceptional circumstances attaching to this matter such that an additional period should be allowed for the making of the application.

[13] The application is dismissed.

Appearances:

No appearance for the applicant.

Ms D Houston on behalf of the respondent.

Hearing details:

2014.

Canberra:

March 27

 1   Letter dated 20/2/2014

 2   Response dated 3/3/2014

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