J Beaupre v Limnos Poultry Pty Ltd

[2011] FWA 2351

[2011] FWA 2351

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

J Beaupre
v
Limnos Poultry Pty Ltd
(U2010/15324)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 15 APRIL 2011

Application for unfair dismissal remedy - extension of time.

[1] On 21 December 2010,Fair Work Australia received an application made by Mr J Beaupre (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming he was unfairly dismissed from the employment of Limnos Poultry Pty Ltd (the Respondent).

[2] In accordance with s.394(2) of the Act, the application for relief must be made within 14 days after the dismissal took effect. This determination relates to lodgement of the application out of time and a determination of whether an extension of time should be granted pursuant to s.394(3) to allow the application to proceed.

[3] By Notice of Listing dated 8 March 2011, the extension of time issue was listed for Conference/Hearing on 15 April 2011, with directions, and proceeded by hearing. The Applicant appeared at the hearing and provided a written submission in accordance with directions issued. Notwithstanding Notice to Mr S Moutzouris, the Managing Director of the Respondent, by email, and to Ms R Knights, the representative of the Respondent nominated in its Employer’s Response to the application, by mail, no written materials were filed on behalf of the Respondent in accordance with the directions made and no-one appeared on behalf of the Respondent at the hearing.

[4] In the circumstances, I have relied on the written and oral submissions of the Applicant, which were not challenged, and which included correspondence from the Respondent setting out the reasons for the dismissal.

[5] The Applicant was employed as a Payroll Officer of the Respondent from 16 January 2001. The termination of the Applicant’s employment was communicated by a letter dated 24 November 2010 from the Respondent, which the Applicant received on 25 November 2010. The latter stated that the termination was effective from 18 November 2010. In his application, the Applicant identified that date of notification of the dismissal as 24 November 2010 and the date the dismissal took effect as 18 November 2010. In its Employer’s response to the application, the Respondent identified both the date the dismissal was notified and the date the dismissal took effect as 18 November 2010.

[6] Section 394(2) of the Act provides:

“(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).”

[7] Both parties have identified the day on which the termination took effect as 18 November 2010. The application was received by Fair Work Australia on 21 December 2010. Accordingly, the application was made 33 days after the dismissal took effect. It is therefore necessary to consider whether to allow a further period for the application to be made under s.394(3) of the Act.

[8] Section 394(3) of the Act provides:

“(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.”

The reason for the delay

[9] The Applicant submitted that he posted his application to Fair Work Australia on 1 December 2010, 13 days after the dismissal took effect and within the 14 day period for the making of an application under s.394(2) of the Act. He submitted that at the same time he posted an application to the Fair Work Ombudsman and received an acknowledgment of receipt on 3 December 2010. On 21 December 2010, not having received any advice from Fair Work Australia as to the receipt of his application, the applicant contacted Fair Work Australia staff and was told that no application had been received. He immediately emailed a copy of the application made by mail on 1 December 2010. The copy of the Form F2 emailed and received in Fair Work Australia on 21 December 2010 was dated 1 December 2010.

[10] I find that there is a clear explanation for the delay in that the application was mailed in time for it to be received in Fair Work Australia within the 14 day period for the making of an application under s.394(2) of the Act but was not delivered by Australia Post. I would regard a failure by Australia Post to deliver mail entrusted to its care as an exception to its usual service standards and as constituting exceptional circumstances for the purposes of s.394(3) of the Act.

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

[11] On his submission, the Applicant first became aware of the dismissal on 18 November 2010, the date upon which it took effect, through a conversation with Mr Moutzouris.

Any action taken by the person to dispute the dismissal

[12] At the same time that he posted the current application to Fair Work Australia, the Applicant mailed a letter, dated 30 November 2010, to the Fair Work Ombudsman seeking assistance in relation to outstanding entitlements and the unlawful/unfair termination of his employment. I am satisfied on this basis that the Applicant has actively pursued his legal rights in respect of the termination of his employment.

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

[13] The Respondent, having not appeared at the hearing or filed written submissions, has not raised any issue of prejudice. No prejudice to the Respondent arising from the delay, as distinct from any general prejudice arising from defending the application, is apparent.

The merits of the application

[14] The 24 November 2010 termination letter from Mr Moutzouris referred to the discussion between the Applicant and himself on 18 November 2010 and confirmed the termination of the Applicant’s employment, with effect from 18 November 2010. The reason for the dismissal was “recent behaviour coming to our attention which was in our view inconsistent with the continuation of your employment”. The recent behaviour was particularised as:

• “Caused a serious and imminent risk to the reputation, viability and profitability of Limnos’s business in that you knowingly exceeded the maximum work hours permitted of a certain employee subject to the conditions of a student work visa and a 20 hour per week limit”;
• “Engaged in conduct that was fraudulent in that you have paid yourself sick leave payment for periods that you were actually present at work and being paid wages”; and
• “You changed the access codes to Limnos Poultry’s online banking facilities without approval and failed to advise me or any other member of staff of the change”.

[15] In his materials filed, the Applicant advanced his explanation of the circumstances in relation to each of these allegations which, if accepted, would substantiate his claim.

[16] On the basis of these written materials, there is clearly a dispute between the parties as to the facts concerning the merits of the application. It was not appropriate to embark on a detailed consideration of the substantive casefor the purpose of determining the extension of time issue. 1 In the absence of full evidence, I am unable to make findings of fact on the contested issues. On the limited material before me, the application cannot be said to be either devoid of merit or clearly meritorious.

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

[17] No relevant circumstances were raised in relation to this consideration.

Conclusion

[18] Having regard to the matters in s.394(3)(a) to (f) of the Act, I am satisfied that there are exceptional circumstances, found in the explanation for the delay,to allow a further period for the application to be made by the Applicant. Accordingly, I will extend the period for making the application until 21 December 2010. Accordingly, the application is accepted. An order to this effect will be issued.

[19] I note that conciliation occurred with the assistance of Fair Work Australia Conciliator Manning on 3 February 2010, without resolution of the application. The file will be returned to the Unfair Dismissals Team of Fair Work Australia to take such steps as are necessary for the application to proceed to arbitration.

SENIOR DEPUTY PRESIDENT

Appearances:

J Beaupre on his own behalf.

Hearing details:

2011.
Melbourne:
April 15.

 1   Kyvelos v Champion Socks Pty Limited, Print T2421 at pn 14.

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