Horace Bynder v East Pilbara Independence Support Incorporated T/A EPIs

[2014] FWC 9081

[2014] FWC 9081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Horace Bynder
v
East Pilbara Independence Support Incorporated T/A EPIS
(U2014/12135)

COMMISSIONER WILLIAMS PERTH, 16 DECEMBER 2014

Termination of employment - extension of time.

[1] Mr Horace Bynder (Mr Bynder or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is East Pilbara Independence Support Incorporated T/A EPIS (the respondent).

[2] Mr Bynder was dismissed on 27 June 2014. The application was made on 1 September 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.”

[5] On 2 October 2014 the Commission wrote to the applicant explaining the effect of s.394 and inviting him to provide any evidence or submissions to assist the Commission determine whether there were exceptional circumstances warranting the grant of a further period within which to make this application.

[6] A response has been provided by Mr Bynder whom has been assisted by the Aboriginal Legal Service in this regard.

Are there exceptional circumstances?

The reason for the delay

[7] Mr Bynder has not provided any additional information beyond that included in his application about any reasons for the delay in making this application beyond the 21 days specified in the legislation.

[8] In his application Mr Bynder says that this was his first time doing a form like this and he had been given wrong forms. He was told to get the “F2 Forms”. He also states was going to a funeral.

[9] Considering these reasons for the delay in making this application the fact that this was the first time Mr Bynder had to complete an unfair dismissal remedy application form and had been given incorrect forms by somebody are difficulties that unfortunately would not be uncommon for employees who are dismissed and wish to make such an application. These reasons consequently are not acceptable reasons for the delay of six weeks.

[10] Mr Bynder says he had to attend a funeral although what date this was is not known nor was it known specifically what impact this had on Mr Bynder making the application. Needing to attend a funeral may interfere with an employee attending to the task of making an application to this Commission however other than in unusual circumstances this could be expected to delay the making of an application by only one day or so. This reason does not explain the extended six week delay in making this application in this case.

[11] I am not satisfied that there are acceptable reasons for all of the delay in making this application.

Whether the person first became aware of the dismissal after it had taken effect

[12] Mr Bynder was made aware of his dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[13] Mr Bynder did not otherwise dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[14] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[15] There is limited information on which a conclusion could be made about the merits of this application. It seems Mr Bynder and the respondent did not agree on what happened on 25 July 2014. It is well established that it is not appropriate for the Commission when determining an extension of time question to conduct a full hearing to resolve such factual disagreements between parties.

[16] Some further information was provided by Mr Bynder regarding events and issues that predated the events on 25 July 2014 which triggered the dismissal. These events apparently occurred in mid 2013 and where the subject of complaints and correspondence through the second half of 2013. It is not clear of the relevance of this material to the substantive unfair dismissal application.

[17] Considering the above the merit of Mr Bynder’s substantive application is a neutral factor for the determination of the extension of time question.

Fairness as between the person and other persons in a similar position

[18] This is not a relevant factor in this matter.

Conclusion

[19] The onus is on the applicant to put material before the Commission which is supportive of allowing a further period for his application to be made beyond the statutory time limit of 21 days.

[20] In this case there are not acceptable reasons for all of the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances here.

[21] Without exceptional circumstances the Commission cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[22] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 14 November 2014

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