Ivan Rowe v Lend Lease Infrastructure Services Pty Ltd T/A Lend Lease

[2012] FWA 10883

[2012] FWA 10883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ivan Rowe
v
Lend Lease Infrastructure Services Pty Ltd T/A Lend Lease
(U2012/13536)

COMMISSIONER LEWIN MELBOURNE, 27 DECEMBER 2012

Termination of employment—unfair dismissal—application for extension of time—in exceptional circumstances.

[1] In this matter Mr Ivan Rowe (the Applicant), asks Fair Work Australia to exercise its discretion under s.394 of the Fair Work Act 2009 (the Act) to grant an extension of time in relation to the lodgement of an application for an unfair dismissal remedy in relation to the termination of his employment by Lend Lease Infrastructure Services Pty Ltd T/A Lend Lease (the Respondent).

[2] Mr Rowe’s application for an unfair dismissal remedy was made on 20 September 2012 and was listed for a telephone Conciliation on 11 October 2012. On 3 October 2012 a Form F4 - Objection to Application for Unfair Dismissal Remedy was lodged with Fair Work Australia by Mr Jim McSparron on behalf of the Respondent. The respondent objected to the application being dealt with because it was filed outside the time provided by s.394 of the Act. The Conciliation set for 11 October 2012 was cancelled on 8 October 2012 by Fair Work Australia and did not proceed due to the Respondent filing this objection.

[3] The matter was set down for a hearing on 21 December 2012 and directions were issued for filing of submissions and witness statements. Pursuant to these directions the Applicant filed submissions on 1 November 2012 and the Respondent on 16 November 2012. Subsequently, the parties agreed that the application for the extension of time should be dealt with on the papers. At the Applicant’s request, another opportunity was provided to file and serve further material by 5.00 pm on 14 December 2012. These submissions were received on 13 December 2012. On 18 December 2012, the Respondent advised my Chambers that they would be relying upon their original submissions to Fair Work Australia.

Background

[4] The Applicant was employed by the Respondent on 2 November 2011 as a Level 5 Electrical Linesperson. The Applicant was dismissed on 17 May 2012 for reasons related to his conduct, namely an alleged failure to obey safe work instructions and the occupational health and safety policies and procedures of the Respondent.

[5] The application was received by Fair Work Australia on 20 September 2012, 126 days after the dismissal and 112 days after the date of expiry of the 14 day time within which the Act prescribes for the making of such applications.

Statutory provisions

[6] An application to Fair Work Australia for an unfair dismissal remedy must, pursuant to s.394 of the Act, be made within 14 days after the dismissal took effect or within such further period as Fair Work Australia allows. Section 394 reads as follows:

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when FWA 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 14 days after the dismissal took effect; or

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

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

[7] It is well established that a limitation period is the general rule and an extension of time is the exception to it. An applicant has the positive burden of demonstrating whether an extension of time is justified 1. To exercise the tribunal’s discretion to allow a further time for the filing of the application I must be satisfied that there are exceptional circumstances justifying the exercise of that discretion. To be exceptional circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare2.

[8] In determining whether there are exceptional circumstances the Tribunal must take into account all of the relevant circumstances, including the matters listed in ss.394(3)(a) - (f) of the Act.

Consideration

[9] I will deal with the matters to be taken into account in the order of s.394(c).

(a) The reason for the delay

[10] In his submissions, the Applicant stated that he was not aware, nor was he advised by his union, the Electrical Trades Union (the ETU), of the 14 day time limit for filing an application for unfair dismissal with Fair Work Australia . Further, the Applicant submitted that he became aware of the 14 day time limit on 17 August 2012. The Applicant, however, failed to put forward a reason why the application was not filed soon after 17 August 2012. The Applicant also submitted that he had decided not to pursue an unfair dismissal claim after receiving advice from the ETU about his options on 18 May 2012.

[11] Such circumstances do not meet the test of exceptional circumstances. As found by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd  3mere ignorance of the statutory time limit is not an exceptional circumstance and the onus is on the dismissed employee to seek out any remedy they may have in a timely fashion. Accordingly, I am not satisfied that the reasons given by the Applicant for the very extensive delay in making the application establish any exceptional circumstances or reason for the delay which would favour allowing a further period for the making of the application.

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

[12] The Applicant’s submissions confirm that he was aware that he had been dismissed on 17 May 2012, following a meeting with Mr Justin Johannesen (Depot Manager Toowoomba) and the receipt of a letter notifying him of the termination of his employment at that meeting. There is nothing arising from this consideration which would favour allowing a further period for the application to be made.

(c) Any action taken by the person to dispute the dismissal

[13] The Applicant made contact with the ETU shortly after his dismissal, and was informed of the ability to bring an unfair dismissal claim against the Respondent. The Applicant also sought legal advice from Legal Aid in Queensland after 17 August 2012 and he became aware of the 14 day time limit then. The application was not lodged until 20 September, some thirty-four days later. These circumstances do not persuade me that there is something exceptional which would favour allowing further time for the application to be made.

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

[14] The Respondent submitted that if the extension of time is granted and the Applicant’s application for unfair dismissal proceeds, the Respondent will be required to adduce evidence regarding the process which led to the Applicant’s dismissal. The Respondent added that as a significant time has passed since the dismissal (and further time will pass if the application is to proceed) it would be difficult to obtain direct evidence and witness statements about incidents leading up to the Applicant’s dismissal in and around May 2012. I consider the delay which may occur should I allow a further period for the application to be made will be likely to cause some prejudice to the employer’s capacity to defend the application.

(e) Merits of the application

[15] In the evidence before me, the Applicant has not clearly articulated why he believes that his dismissal was harsh, unjust or unreasonable save for his contention that a number of similar incidents had occurred prior to the one involving the Applicant, where the employees involved were not dismissed by the Respondent.

[16] The Respondent submitted that it had a valid reason to terminate the Applicant’s employment, namely, that the Applicant allegedly failed to comply with lawful and reasonable instructions about work safety, and committed a reckless breach of the Respondent’s policies and procedures. The Respondent added that the Applicant was notified of the Respondent’s concerns, interviewed regarding the incident, given an opportunity to respond to the allegations made against him, and provided with the opportunity to have a support person present during meetings with the Respondent.

[17] On what is before me the respondent is not without an arguable case that there was a valid reason for the termination of the Applicant’s employment and that the Applicant was afforded procedural fairness in the circumstances which led to the termination of his employment. There is nothing exceptional arising from a prima facie consideration of the merits of the case as they have been put by the parties.

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

[18] The Respondent submitted that there were two employees involved in the incident that led to the Applicant’s dismissal. Both the Applicant and the other employee were dismissed following separate investigations into their conduct. It is not apparent that there is some consideration of unfairness as between the Applicant and the other employee in the particular circumstances of the case which could be said to constitute exceptional circumstances.

Conclusion

[19] I have weighed all of the circumstances in which the application was lodged, including each of the matters contained in s.394(3)(a)-(f) of the Act, I am not satisfied that there are any exceptional circumstances justifying the exercise of discretion to allow a further period for the application to be accepted out of time.

[20] The application is dismissed and an Order will issue to that effect.

COMMISSIONER

Hearing details:

On the papers

 1   Brisbane South Regional Health Authority v Taylor (1996) CLR 541.

 2   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 3   Ibid.

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