James McCallum v ETI Fire and Lubrication Systems Pty Ltd
[2022] FWC 1612
•23 JUNE 2022
| [2022] FWC 1612 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James McCallum
v
ETI Fire And Lubrication Systems Pty Ltd
(U2022/5274)
| COMMISSIONER WILLIAMS | PERTH, 23 JUNE 2022 |
Application for an unfair dismissal remedy
Mr James McCallum (Mr McCallum or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is ETI Fire And Lubrication Systems Pty Ltd (the Respondent).
Mr McCallum’s application says he was notified of his dismissal on 18 April 2022 and the dismissal took effect on the same date. Mr McCallum’s application was made on 10 May 2022.
The application has been made more than 21 days after the dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out 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.”
Consequently, on 13 May 2022 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided a written response the following day, 14 May 2022.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
In his application Mr McCallum explains that he was waiting on a written termination letter stating clearly the reasons why he was dismissed.
In his further explanation provided to the Commission on 14 May 2022, Mr McCallum explains he sent an email to the respondent requesting his termination letter on 5 May and again on 9 May 2022. He says to date he has not received a reply.
No other explanation for the delay in making the application has been provided.
The Applicant choosing to wait on the receipt of a letter of termination was his choice. The absence of a letter of termination did not prevent him from making this application to the Commission within the 21 day time period provided for in the legislation.
Consequently, I am not satisfied that that Mr McCallum has an acceptable reason for the delay in making this application.
The reason for the delay is not itself an exceptional circumstance.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of his dismissal on the day it took effect.
Action taken to dispute dismissal
The Applicant did not take any other separate action to dispute his dismissal however he did email the respondent on 9 May 2022 stating he was struggling to comprehend what had happened and that it was a shock to him.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
The applicant submits that he received no prior notice of termination, no warning letters and no termination letter.
He says on the day of his termination he was advised verbally of three concerns,
· One ETI customer did not want to deal with him as he was not very helpful;
· Staff in the factory did not like him; and
· Mr Mark Williams was concerned he was too slow to provide service.
The applicant in his submission to the Commission answers these allegations or complaints from his perspective.
The Commission notes that the contact address for the respondent is in Central Java, Indonesia. Consistent with this, the Applicant states in his application that he worked in the international market predominantly in Central Java, Indonesia. Finally, the Applicant’s business card refers to him as being the sales and technical director of an Indonesian company, ETI Fire And Lubrication Systems, with all contacts being in Indonesia.
It seems likely that the applicant worked in Indonesia for an Indonesian company which raises doubt as to whether the Commission has jurisdiction to deal with this application.
The Commission when dealing only with the preliminary question of whether further time should be allowed to Mr McCallum to make his application is not required to have a hearing regarding the merits of his case.
Consequently, in the absence of such proceedings the Commission cannot form a concluded view as to whether there is jurisdiction to consider this application at all and, if there is jurisdiction, a concluded view of the merits of the application. Consequently, the merit, or lack thereof, of this application is a neutral consideration.
Fairness as between the person and other persons in a similar position
There is no information before the Commission regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the Applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR742997] to that effect will now be issued.
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