Gregory Talifero v GWA Group Limited T/A Gliderol

[2014] FWC 2618

[2014] FWC 2618

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Talifero
v
GWA Group Limited T/A Gliderol
(U2014/5482)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 APRIL 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 17 April 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 11 March 2014 Mr Talifero lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with GWA Pty Ltd T/A Gliderol (Gliderol).

[3] In that application, Mr Talifero advised that his dismissal took effect on 6 November 2013. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“I read all the relevant information on the fairwork website and contacted GWA immediately by phone and email, they retain a person known as Mr John Lunny who contacted me and asked for all details so he could investigate the matter.when I was unfairly and surprisingly dismissed I was left without transport and have been unable to gain work since, the shortage of money has also delayed the process and tended to make the gwa path to resolution easier financially.

I supplied him with information and have been waiting for a response from GWA since 16th January.

I have made all reasonable efforts to resolve the matter to no avail.” 1 (sic)

[4] The application was referred to me for consideration. On 28 March 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 17 April 2014. Mr Talifero was required to provide a witness statement and a copy of any document relied upon, by 15 April 2014.

[5] An Employer’s Response (Form F3) to the application was received on 8 April 2014. That response identified the employer as GWA Group Limited T/A Gliderol. It asserted that Mr Talifero was employed on 20 May 2013 and that his dismissal took effect on 6 November 2013. The Form F3 confirmed that Gliderol objected to an extension of time and objected to the application proceeding on the basis that Mr Talifero had not completed the requisite minimum employment period.

[6] Mr Talifero did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to Gliderol by 15 April 2014. On 16 April 2014 my Associate requested urgent advice from him in this respect. Mr Talifero responded to this request by email shortly before the conference. His email stated:

“I am sorry for the late response I have been without a computer until tonight, please see my attached documentation.

I believed I was acting in fairness to GWA and in good faith as I raised my complaint with GWA within 24 hours of my unfair dismissal and the date I lodged my formal complaint in no way prejudiced or placed GWA in a position of disadvantage,in fact by communicating with them openly in order to try and mediate a satisfactory settlement helped them as they have obviously used there knowledge of the system to my probable disadvantage and need to rely on the court system.

• I did not have sufficient money to lodge a claim

• I was not in a strong mental position to be able to claim unemployment benefit in order to get a subsidized claim lodged.

• I acted in good faith as the FWA web site encouraged speaking to your former employer, which I did in the belief that i had effectively raised my complaint within the 21 days all be it with GWA directly.

• Following my dismissal I have been left feeling weak and with poor concentration on this matter as it has a physical effect on me, causing shaking and sleeplessness.

• The reason for the delay in lodging was purely that I was broke and suffering hardship as c communicated to GWA on thought I had taken the correct action in lodging a complaint with GWA as suggested on the web site.

• I was dismissed within 48hrs following a formal complaint about bullying.

• I raised my complaint with GWA within 24hrs of my dismissal so could not have placed them in a position of disadvantage, they have acted without conscience throughout this ordeal.

--

kind Regards

Greg Talifero” (sic)

[7] The extension of time issue was considered through a telephone conference on 17 April 2014. A sound file record of this conference was kept. Mr Talifero participated in this conference and confirmed his earlier advice about the lodgement of the application. Gliderol was represented by Mr Lunny, as agent, pursuant to a grant of permission made under s.596(2)(a) of the FW Act.

[8] At the conference I advised that I would amend the application pursuant to s.586 of the FW Act so as to specify the respondent as GWA Group Limited T/A Gliderol.

[9] I have considered the extension of time issue on the material before me and the advice provided to me at this conference.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[12] In terms of s.394(2) I am satisfied that the application was lodged some 104 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Talifero’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Mr Talifero has provided does not adequately explain why the application could not have been lodged within time. It may well be the case that Mr Talifero was depressed, tired and emotional following the termination of his employment but evidence that establishes a medical basis upon which he was unable to lodge the application for such a long period of time has not been provided. I have noted Mr Talifero’s position that he was in financial difficulty but no application for a waiver of the application fee was made. Having considered all of the advice provided by Mr Talifero, I am not satisfied that he has established to me a satisfactory reason for the very substantial delay.

[14] On the information provided in Mr Talifero’s application, I am satisfied that he was made aware of the termination of employment decision on 6 November 2013, which I have taken as the date that termination of employment took effect.

[15] Again, from the information provided in Mr Talifero’s application it is clear that he challenged the termination of his employment and raised concerns about bullying in the workplace on 13 November 2013 and that the matter was referred to Mr Lunny for consideration and investigation. Attached to Mr Talifero’s application is an e-mail from Mr Lunny which confirms his conclusions. I am unable to conclude that Mr Talifero took further action in this respect.

[16] The granting of an extension of time would prejudice the respondent in this matter.

[17] In terms of the merits of the application, s.382 establishes that, for a person to be protected from unfair dismissal he or she must have completed the minimum employment period. This minimum employment period is further defined in s.383 in the following terms:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[18] I have noted the correspondence attached to Mr Talifero’s application where he asserts that the additional hours he regularly worked meant that he had completed an effective six-month period of employment.

[19] Notwithstanding this, I am not satisfied that Mr Talifero’s employment with Gliderol was of a duration that met the definition of the minimum employment period and have concluded that he was not a person protected from unfair dismissal.

[20] Considerations of fairness relative to persons in similar circumstances to Ms Stephens do not support an extension of time.

Conclusion

[21] For the reasons I have set out above, Mr Talifero’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). Further, I have concluded that there is no capacity for Mr Talifero to pursue the application as he was not a person protected from unfair dismissal. The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR549834) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

G Talifero on his own behalf.

J Lunny representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

April 17.

 1   Form F2, para 1.4

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