Graeme Partington v Allianz Australia T/A Allianz CTP

[2013] FWC 1740

[2013] FWC 1740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Partington
v
Allianz Australia T/A Allianz CTP
(U2013/6210)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 MARCH 2013

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

[1] On 6 February 2013 Mr Partington lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with Allianz Australia T/A Allianz CTP (Allianz). The application was not resolved through the conciliation process and was referred to me for determination.

[2] There is no dispute that Mr Partington was advised of the termination of his employment on 8 January 2013. Further, there is no dispute that a letter confirming this dismissal was provided to him on 9 January 2013. The application was therefore lodged some eight days outside of the 21 day time limit now specified in s.394(2).

[3] Section 394(2) provides that an extension of this time limit may be allowed by the Fair Work Commission pursuant to s.394(3). This subsection states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

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

[4] Section 396 requires that, amongst other specified initial matters, the extension of time issue must be decided before the merits of Mr Partington's application are considered.

[5] Having consulted with the parties, the extension of time issue was the subject of a determinative conference with me on 14 March 2013. Mr Partington represented himself in this conference and Allianz was represented by its Employee Relations Consultant, Ms Thomas who appeared by video-link from Sydney.

[6] I note that, in directions I issued on 5 March 2013, both parties were required to provide to the Commission and to each other, by 12 March 2013, a copy of any document to be relied upon in this conference. Allianz provided copies of various warnings and correspondence addressing performance issues relative to Mr Partington which I have taken into account in this matter. Mr Partington did not dispute the authenticity of these documents.

[7] Mr Partington gave evidence at this conference relative to the termination of his employment and the reasons for the delay in lodgement of the application.

[8] In brief, the background to Mr Partington's application is that he was a claims consultant in the Allianz Compulsory Third Party insurance function. He had worked for Allianz since February 2005. The termination of Mr Partington's employment occurred on 8 January 2013 following various warnings about his work performance.

[9] Mr Partington's evidence was that he was shocked and disappointed at his dismissal and that shortly after he travelled to Melbourne to attend the Australian Open Tennis consistent with arrangements he had previously made. As a consequence of his dismissal Mr Partington extended his stay in Melbourne. He advised that he returned from Melbourne shortly before he lodged the application but that he considered that he had lodged the application at the earliest practicable time. Mr Partington advised that he only became aware of the time limit specified in s.394 after lodging his application.

[10] Mr Partington confirmed that, after his dismissal he took no action to contest that dismissal apart from lodging this belated application.

[11] Mr Partington's position was that the termination of his employment was rushed and that Allianz failed to give him adequate reasons and/or an adequate or fair opportunity to respond to the proposition that his employment would be terminated.

[12] Mr Partington agreed that in mid-2012 Allianz assessed Mr Partington's work performance as unsatisfactory and instituted a performance improvement plan in July 2012. On 31 August 2012 Allianz gave Mr Partington a first written warning relative to its concerns over his work performance. Mr Partington disputed the Allianz assessment of his performance which was then reviewed by three other Allianz staff members. It is clear that Mr Partington did not agree with this review outcome. Allianz gave Mr Partington a second and final written warning on 23 November 2012. On 7 January 2013 Allianz provided Mr Partington with written advice detailing its concerns over his work performance. In this correspondence, Allianz advised that it was reviewing Mr Partington's employment and requested that he provide a written response to itemised performance concerns for discussion at a meeting on 8 January 2013. This advice to Mr Partington recorded that he had the opportunity to have a support person present at that meeting. Following discussions at this meeting Allianz advised Mr Partington that it was not satisfied with his response and that his employment was terminated with effect from that date. Mr Partington was paid five weeks pay in lieu of notice and was provided with written confirmation of the Allianz decision on 9 January 2013.

Findings

[13] I have considered the factors set out in s.394(3) in order to reach a conclusion about whether there are exceptional circumstances which would warrant the granting of an extension of time.

[14] I am not satisfied that there was an acceptable reason for the delay in the lodgement of the application. To the extent that Mr Partington explains this delay on the basis of his attendance at the Australian Open Tennis event, this simply cannot represent an acceptable reason for the delay as it is clear that Mr Partington placed his attendance, as a spectator at this event as a priority above any pursuit of a remedy relative to his dismissal. To the extent that Mr Partington seeks to explain the delay on the basis that he was unaware of the legislative time limit, this cannot represent an acceptable reason for the delay. Finally, Mr Partington appears to suggest that his shock and disappointment at the termination of his employment could explain the delay. No medical evidence relative to Mr Partington's capacity to make decisions over this time has been provided to me and I consider that, if Mr Partington was able to make decisions about attending a sporting event, this indicates that he could also make decisions about disputing the termination of his employment.

[15] There is no dispute that Mr Partington became aware of the termination of his employment on 8 January 2013 which was the date that termination took effect.

[16] There is no dispute that Mr Partington did not take any action, other than the late lodgement of this application, in order to dispute the termination of his employment.

[17] I have concluded that an extension of time of the magnitude involved here would not prejudice Allianz.

[18] In terms of the merits of Mr Partington's application, the evidence before me indicates that it is highly unlikely that his application could be successful. The evidence provided to me is indicative of a fair and equitable performance-based review process which formed a valid reason for the termination of Mr Partington's employment and provided him with procedural fairness.

[19] Considerations of fairness between Mr Partington's application and other matters considered by the Commission would indicate that the application for an extension of time should be refused.

[20] I am not satisfied that Mr Partington's circumstances are in any way exceptional so as to warrant the granting of an extension of time. The starting point for any consideration of an extension of time must be that the legislative time limit should be complied with unless there are very good reasons for extending it consistent with s.394(3). Mr Partington has not provided me with any such good reasons.

[21] On this basis, Mr Partington's application for an extension of time is refused and the application is dismissed. An Order [PR535010] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

G Partington on his own behalf

S Thomas for the Respondent.

Hearing details:

2013.

Adelaide (and video-link to Sydney):

March 14.

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<Price code A, PR535009>