Ian Edwards v M C Herds Pty Ltd

[2015] FWC 7651

[2015] FWC 7651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Edwards
v
M C Herds Pty Ltd
(U2015/13242)

COMMISSIONER ROE MELBOURNE, 6 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time.

[1] Mr Edwards was employed by MC Herd Pty Ltd for 27 years. He was dismissed for alleged serious misconduct at a meeting which was also attended by a union delegate on 28 August 2015. The application for unfair dismissal was made on 29 September 2015 which is approximately 11 days out of time.

[2] I have had regard to the matters set out in Section 394 of the Fair Work Act 2009.

[3] Mr Edwards says that the reasons for the delay are that he sought union advice after a week and that the union was not responsive. He says that his family then suggested that he seek legal advice. He says he rang solicitors who then mailed out paper work. Mr Edwards says that he does not have a computer. He says that he was unaware of the 21 day time limit.

[4] Mr Chalkley, Assistant State Secretary of the union, gave evidence that he received a telephone message from Mr Edwards around 3 September 2015 and rang back shortly afterwards and left a voicemail message on Mr Edwards’ mobile phone. Mr Chalkley says that Mr Edwards did not ring him back. Mr Edwards agrees with this evidence but says that he did not get the message.

[5] Mr Bell, union delegate from the MC Herd site, gave evidence that another union delegate advised Mr Edwards to ring the union office immediately after the dismissal. Mr Bell also gave evidence that he made several attempts to contact Mr Edwards on his mobile phone and left messages but Mr Edwards did not ring him back. Mr Edwards agrees with this evidence but says that another worker rang him and took the phone to Mr Edwards. This occurred around 3 September 2015.

[6] I am not satisfied that there is anything unusual or abnormal about the circumstances faced by Mr Bell. None of the matters raised contribute to a finding that exceptional circumstances exist warranting an extension of time. This is a significant factor standing against the granting of an extension of time.

[7] I am satisfied that Mr Edwards was made aware at the meeting on 28 August 2015 that he was dismissed from his employment. This is a neutral factor.

[8] I am satisfied that Mr Edwards took no significant action to contest the dismissal prior to lodging the application. There is no evidence of any contact with the employer or his union other than the call to Mr Chalkley and contact with Mr Bell on or about 3 September 2015. The action in contacting a solicitor is not significant action taken to contest the dismissal. This is a factor which stands against the finding of exceptional circumstances.

[9] There is no particular prejudice to the employer caused by the delay. This is a neutral factor.

[10] If the submissions of Mr Edwards were accepted then there would be an arguable case for unfair dismissal. The submissions and evidence are strongly contested by MC Herd who have provided evidence as to why there was a valid reason for termination. If the allegations made were substantiated they would constitute a valid reason for termination. I have not considered all of the evidence and it is not appropriate to do so in an extension of time matter. I do note the very long period of service Mr Edwards had with the employer. This makes it more likely that there could be a finding that the dismissal was harsh or disproportionate. The potential merits are a factor in favour of the granting of an extension of time in the circumstances of this case. However, they are not a strong factor.

[11] There was no submission that there would be any particular unfairness to grant or not grant an extension of time in this case when compared to other persons in a similar position. This is a neutral factor.

[12] Taking all of the factors specified in Section 394(3) of the Fair Work Act 2009 into consideration I am not satisfied that there are exceptional circumstances which warrant the granting of an extension of time in this case. The application is dismissed.

COMMISSIONER

Appearances:

Mr I Edwards representing himself

Mr M Diserio appeared on behalf of the Respondent

Hearing details:

2015

Melbourne

November 6

Printed by authority of the Commonwealth Government Printer

<Price code A, PR573691>