Graham Andrews v Matthews Bronze Pty Ltd T/A Arrow Bronze

[2015] FWC 4937

[2015] FWC 4937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graham Andrews
v
Matthews Bronze Pty Ltd T/A Arrow Bronze
(U2015/5586)

COMMISSIONER RYAN MELBOURNE, 20 JULY 2015

Application for relief from unfair dismissal – extension of time refused.

[1] The Applicant was dismissed from his employment with the Respondent on 24 November 2014 and the Applicant filed an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) on 26 May 2015, well over 5 months outside the 21 day time limit set by s.394(2)(a) of the Fair Work Act 2009 (the Act).

[2] The Applicant seeks that the Commission grant an extension of time pursuant to s.394(2)(b) of the Act. Both the Applicant and the Respondent have agreed that the Commission can determine the extension of time matter on the papers.

[3] The Commission may grant an extension of time to an applicant to file an application for an unfair dismissal remedy but the Commission may only exercise its discretion after the Commission has determined that there are exceptional circumstances warranting an extension of time.

[4] Section 394(3) provides as follows:

“(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.”

[5] A consideration of the existence of exceptional circumstances requires the Commission to take into account the criteria set out in s.394(3). Whether any single circumstance or set of circumstances is exceptional requires that the circumstances “must be out of the ordinary course, or unusual or special or uncommon but need not be unique, or unprecedented or very rare”. 1

[6] Having carefully taken into account the relevant criteria set out in s.394(3) of the Act the Commission declines to grant an extension of time to the Applicant in which he could file an application for an unfair dismissal remedy.

[7] Only 4 days after the dismissal the Applicant sought advice and representation from McDonald Murholme in relation to his dismissal. The Applicant made a payment to McDonald Murholme on 28 November 2014. As the Applicant described it “I believed the payment was for advice and McDonald Murholme making an application on my behalf.’ The Applicant made enquiries of McDonald Murholme during December, January and February. The Applicant advises that ‘Mr McDonald finally returned my call in late February and told me he could not help me with my claim.”

[8] The Respondent contends that the Applicant’s reliance on McDonald Murholme does not constitute an acceptable reason for delay based on representative error. In the present matter where there is nothing before me other than the contentions of the Applicant and where no view has been expressed by McDonald Murholme I am of the view that the explanation given by the Applicant would met the requirement of the tests identified by the authorities in relation to representational error. 2

[9] However it is very clear that such an explanation only relates to the period up to late February 2015. Once the Applicant was advised in late February 2015 by McDonald Murholme that they were not representing him, any further delay cannot be put down to representational error.

[10] The delay from late February to 26 May 2015 was occasioned by the Applicant.

[11] The very fact that the Applicant was able to contact a law firm within 4 days of the dismissal shows that the Applicant could have (if he had wanted to) contacted any other law firm once McDonald Murholme advised him that they could not help him with his claim.

[12] The Applicant’s explanation for the delay between late February 2015 and 26 May 2015 is that:

“I thought I could not apply for unfair dismissal due to the length of time taken by Mr McDonald. I also could not believe that I had wasted $440.00 and that McDonald Murholme did nothing to help me with my claim and application.

After speaking with a friend at the football last week about the experience and disappointment with the whole process he made me aware that I could still make a claim after the 21 days had expired if I could show that I had special circumstances which I believe I do.”

[13] The Applicant’s explanation of the delay between late February 2015 and 26 May 2015 does not of itself give rise to an exceptional circumstance.

[14] Whilst the Commission does not engage in any detailed consideration of the merits of an unfair dismissal application when considering an extension of time application, some regard must be had to the merits of the unfair dismissal application as s.394(3)(e) requires it. The Applicant would not appear to have an overly meritorious case in relation to unfair dismissal. In the context of the present matter, this element of s.394(3) must have neutral weight as between the Respondent and the Applicant.

[15] Balancing each of the relevant criteria in s.394(3), the outcome is very clearly against the Commission exercising its discretion to grant an extension of time to the Applicant .

[16] As the application for an unfair dismissal remedy filed by the Applicant in this matter is out of time, the application is dismissed.

COMMISSIONER

 1   Nulty v Blue Star Group P/L[2011] FWAFB 975 at pn [13].

 2   Officeworks v Parker[2014] FWCFB 5779 at [13].

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