James Power v APTS Pty Ltd

[2015] FWC 6364

[2015] FWC 6364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Power
v
APTS Pty Ltd
(U2015/10035)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Mr James Power alleged that the termination of his employment by APTS Pty Ltd on 15 July 2015 was unfair.

[2] His unfair dismissal application lodged on 12 August 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

(a) the reason for the delay;

[5] On 30 July 2015, Mr Power lodged an application for an unfair dismissal remedy in the Western Australian Industrial Relations Commission (WAIRC). On 12 August 2015, APTS advised him that the WAIRC did not have jurisdiction to hear his application. He looked into this and lodged his application with the Fair Work Commission that day. Mr Power says that the reason for the delay was because he mistakenly lodged his application in the wrong Commission. He stated that because he had no income he was unable to obtain professional legal advice. Mr Power gave no evidence of any attempt by him to obtain preliminary legal advice before he lodged his application.

[6] The WAIRC unfair dismissal application form on its front page states “If the employer in this matter is a trading, financial or foreign corporation the Commission may not have jurisdiction to deal with the matter.”

[7] The WAIRC guide for unfair dismissals advises employees, that since March 2006, the WAIRC has been prevented from dealing with unfair dismissal claims if the person was employed by a trading or financial corporation.

[8] Mr Power knew that he was employed by was a company as he ticked that box on the application form. Mr Power did not make any inquiries about whether the WAIRC had jurisdiction despite this information.

[9] I provided Mr Power with a copy of the Fair Work Information Statement. That Statement advises employees that if they are unfairly dismissed that they may make an application to the Fair Work Commission and that they must do so within 21 days of the dismissal. Mr Power said that he had received that statement at the commencement of employment.

[10] Ms Hayley McWilliams, the HR adviser, gave evidence that Mr Power had, in a conversation with her, made reference to his rights under the Fair Work Act 2009 when a dispute arose about him taking leave. Mr Power denied ever referring to the Fair Work system. He said he always thought he was covered by the Western Australian system.

[11] This is not a case where there may have been some question as to whether APTS was a constitutional corporation. Mr Power knew he was employed by a company and was on notice that there may be an issue about jurisdiction.

[12] It is not unusual for persons in Western Australia to mistakenly lodge unfair dismissal applications in the WAIRC. Had this been a case where there was uncertainty as to which jurisdiction applied or if Mr Power had been under some disability which made it difficult for him to obtain advice about this issue, I may have found that he had a reasonable explanation for the delay in lodging his application. However Mr Power had been advised by his employer when he commenced employment 12 months ago that he was covered by the federal system and the WAIRC form alerts applicants to the issue. In those circumstances, I consider that Mr Power does not have a reasonable explanation for the delay in lodging his claim. This weighs against a finding that there are exceptional circumstances.

[13] (b) whether the person first became aware of the dismissal after it had taken effect;

[14] Mr Power was aware of the dismissal when it took effect and had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[15] Mr Power lodged his unfair dismissal application in the WAIRC on 30 July 2015 and APTS received it that day. On 15 July 2015, Mr Power notified his employer of an alleged error in the termination letter and asked for a copy of the written warning allegedly given to him on 10 March 2015. From 30 July 2015, APTS was on notice that Mr Power disputed his dismissal. This weighs in favour of a finding that there are exceptional circumstances.

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

[16] In its submissions and evidence filed, APTS did not point to any prejudice. At the hearing it submitted that it had filled Mr Power’s position. However it did so knowing Mr Power disputed his dismissal albeit in the wrong jurisdiction. I do not consider any prejudice weighs against a finding that there are exceptional circumstances.

(e) the merits of the application;

[17] APTS relies on written warnings provided to Mr Power about his performance. Mr Power disputes the basis of the warnings issued to him and says that issues about the performance of his department were due to staffing shortages which APTS was aware of and did not rectify.

[18] I am not able to make any final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[19] No submissions were made about this criterion.

Conclusion

[20] I am not satisfied that there are exceptional circumstances. This is not a case where the merits of the claim are such as to outweigh the lack of a reasonable explanation for the delay. Mr Power’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Power on his own behalf.

C. Newbound for the Respondent.

Hearing details:

2015.

Melbourne and Perth (by video link):

September 11.

 1   [2011] FWAFB 975

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