Geoffrey Elshaw v Valway Earthmoving

[2014] FWC 4041

[2014] FWC 4041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey Elshaw
v
Valway Earthmoving
(U2014/6841)

DEPUTY PRESIDENT MCCARTHY PERTH, 10 JULY 2014

Application for relief from unfair dismissal.

[1] Mr Geoffrey Elshaw (the Applicant) lodged an application pursuant to s.365 (the s.365 application) of the Fair Work Act 2009 (the FW Act) on 21 March 2014. The Applicant asserted in that s.365 application that his dismissal contravened a number of general protections provisions of the FW Act. I held a conference regarding that application on 14 April 2014. The conference was adjourned to provide the Applicant with time to consider his options and obtain advice. On 24 April 2014 I wrote to the Applicant and requested that he advise whether he wished me to issue a s.368 Certificate. The Applicant advised he wished to discontinue the s.365 application and foreshadowed that he would lodge an unfair dismissal application.

[2] On 28 April 2014, the Applicant lodged an application pursuant to s.394 of the FW Act (this application). He also formally discontinued the s.365 application.

[3] The Applicant became aware of his dismissal around the time it occurred (18 March 2014) and took prompt action to dispute the dismissal by lodging a s.365 application 3 days after the dismissal took effect. The reason for the delay is thus clearly the lodging of the s.365 application, rather than this application pursuant to s.394 of the FW Act.

[4] There is no prejudice to the employer. Indeed Valway Earthmoving (the Respondent) does not object to this application being allowed despite it being lodged outside the time allowed.

[5] The merits of this application weight neither in favour of a finding of exceptional circumstances nor against such a finding suffice to note that the facts are disputed. The fairness between the Applicant and other persons in a similar position favours an extension of time. In particular in that regard I give substantial weight to the fact that the Respondent does not object to an extension being allowed.

[6] I find that there are exceptional circumstances that exist and I extend the time for this application to be allowed.

DEPUTY PRESIDENT

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