Jarrod Belford v Swan Transit Services Pty Ltd
[2016] FWC 5201
•29 JULY 2016
| [2016] FWC 5201 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jarrod Belford
v
Swan Transit Services Pty Ltd
(U2016/1192)
COMMISSIONER RYAN | MELBOURNE, 29 JULY 2016 |
Application for relief from unfair dismissal - whether application barred by s.725 – application filed out of time - application dismissed.
[1] The Applicant had been employed by the Respondent as an apprentice mechanic since May 2014.
[2] On 4 December 2015 the Respondent dismissed the Applicant for breaching the Respondent’s Drug and Alcohol Policy. On 17 December 2015 the Respondent made an application to the Western Australia Department of Training and Workforce Development (the Department) to terminate the training contract existing between the Respondent and the Applicant. The Department approved the Respondent’s application and the training contract between the Respondent and the Applicant was terminated with effect as from 22 February 2016. The Applicant lodged an appeal against the Department’s decision with the Western Australian Industrial Relations Commission (WAIRC) within 14 days of 22 February 2016 as required by the relevant WA statutory provisions. On 17 March 2016 the Applicant filed with the Fair Work Commission his Unfair Dismissal Application.
[3] Whether the Applicant was dismissed on 4 December 2015, as contended by the Respondent, or on 22 February 2016, as contended by the Applicant, the application in this matter was filed with the Commission outside the 21 day time limit specified by s.394(2)(a) of the Act.
[4] The Applicant requests that the Commission extend the time for filing the application in this matter pursuant to s.394(2)(b) of the Act.
[5] Three issues arise in this matter. The first issue is whether the unfair dismissal application is barred by operation of the Multiple Actions provisions of Part 6-1 of the Act. The second issue is to determine the date of dismissal for the purposes of the Unfair Dismissal jurisdiction of the Commission under Part 3-2 of the Act. The third issue is to determine the application for an extension of time made under s.394 of the Act. Clearly, if the first issue is resolved against the Applicant then issues 2 and 3 do not need to be answered. However, I intend to answer each of the issues.
Is the unfair dismissal application barred by operation of the Multiple Actions provisions of Part 6-1 of the Act?
[6] Part 6-1 of the Act provides for rules relating to multiple actions in relation to the same matter. Subdivision B of Division 3 of Part 6-1 specifically provides for limitations on making applications in relation to a dismissal if another application has been made in relation to the dismissal. The relevant provisions for the present matter are:
“Subdivision B—Applications and complaints relating to dismissal
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
729 Unfair dismissal applications
This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.
733 Dismissal does not include failure to provide benefits
For the purposes of this Subdivision, a reference to an application or complaint made in relation to a dismissal does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled as a result of the dismissal.”
[7] The purpose of these provisions was explained in the Explanatory Memorandum to the Act as follows:
“2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.
2710. In all cases the anti-double dipping provisions will not apply where the initial application has:
been withdrawn; or
failed for want of jurisdiction.
2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.”
[8] As s.725 makes clear, the Applicant could not make an unfair dismissal application (to which s.727 applies) if the Applicant has already made an application to which s.732 applies.
[9] The Respondent contends that the Applicant has made an application to which s.732 applies and that this application was made before the Applicant made his unfair dismissal application and that the other application is still being pursued by the Applicant.
[10] The Applicant was employed by the Respondent as an apprentice mechanic and was employed under a training contract regulated by the Vocational Education and Training Act 1996 (the WA Act) and the Vocational Education and Training (General) Regulations 2009 (the WA Regs).
[11] When the Respondent dismissed the Applicant on 4 December 2015 this did not terminate the training contract (apprenticeship) under the WA Act or WA Regs. The Respondent applied to the Chief Executive of the Department on 17 December 2015 for approval to terminate the training contract of the Applicant and the Chief Executive approved the termination of the training contract with effect from 22 February 2016. The Applicant appealed to the WAIRC against the decision of the Chief Executive of the relevant. It is not known when the Applicant filed his appeal with the WAIRC but it was certainly filed before the Applicant filed his unfair dismissal application. In his unfair dismissal application the Applicant noted that:
“I currently have an appeal against the DTWD before the WAIRC concerning the termination of my training contract with Swan Transit. My appeal number is APA 3/2016.”
[12] For the Applicant’s appeal to the WAIRC to be caught by s.732 of the Fair Work Act it must be an application made “in relation to the dismissal”. What is meant by “in relation to the dismissal” was considered by Lucev FM in Birch v Wesco Electrics 1. After considering a range of authorities which dealt with the phrase “in relation to” or which dealt with similar words, Lucev FM said:
72. That the expression “in relation to” gathers meaning from both the context in, and purpose for, which it appears, is a consistent theme in Federal Court judgments relating to that expression. The consideration of context in each case limits the precedential value of prior judgments in considering the proper interpretation and reach of “in relation to” in the specific circumstances presently before the Court. Context is also important to a consideration of whether the relationship need be:
a. direct or substantial;
b. indirect or less than substantial;
c. affecting one term of the relationship; or
d. affecting all of the terms of the relationship.
73. In Tooheys the “vital question” was said to be “whether the instrument “relates” and not whether it may be “related” by an examination of extraneous circumstances.”
74. The phrase “in relation to” does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”.
75. The statutory purpose for which s.725 of the FW Act was enacted was to prevent an applicant, having filed an application or complaint of one type in relation to their dismissal, from filing an application or complaint of another type in relation to their dismissal. Applied to the present context, it is to prevent an applicant having filed a general protections court application in relation to their dismissal in this Court, from lodging an equal opportunity complaint in relation to their dismissal under a State equal opportunity law. The statutory purpose, put simply, is to limit an applicant to a single remedy.
[13] Applying the decision in Birch to the present matter leads to the conclusion that the Applicant’s appeal to the WAIRC in relation to the termination of his training contract is an application in relation to the dismissal of the Applicant. The decision of the Department was made under s.60G(3) of the Vocational Education and Training Act 1996 (WA) which provides as follows:
“(3) The chief executive must approve the termination of a training contract under subsection (2) if satisfied —
(a) the employer has ceased or is about to cease business; or
(b) the employer is unable to fulfil the employer’s obligations under the contract due to a substantial change of circumstances that has occurred since the contract was entered into; or
(c) the apprentice has engaged in serious misconduct; or
(d) as to any matter prescribed,
but otherwise may refuse to approve the termination.”
[14] The Department’s decision was as follows:
“Based upon the information provided, I find the employer has substantiated their claims that you have breached their Drug and Alcohol Policy. As a result, and in accordance with the Transit Systems Drug and Alcohol Policy, you have been stood down from your employment. This precludes you from participating in the on the job training which has frustrated the purpose of the training contract, which is to obtain a qualification in the Certificate Ill in Heavy Commercial Vehicle Mechanical Technology. For this reason, I am satisfied that the requirements of sub-section 60G(3)( d) have been met.
As one of the provisions under subsection 60G(3) has already been met for the termination application to be approved, I have not assessed the employer's application against sub-section 60G(3)(a), (b) and (c).”
[15] The Applicant’s appeal to the WAIRC contains the following:
“I did not wilfully or deliberately engage in serious misconduct nor did I break any laws. I have been harshly and unfairly dealt with for unwittingly breaching a company policy.”
And
“I consider that the DTWD, when reviewing my submission, ignored the mitigating circumstances in my case and actually used some of them against me.”
And
“The DTWD did not respond to my claim that they had breached their own policy and the Vocation Educational and Training ACT 1996 - SECT 60G by taking no action against my employer for committing several offences concerning my suspension, termination and notification to DTWD. My employer did not provide me with a suspension notice, did not provide the DTWD Apprenticeship Office with a copy of a suspension notice before 5.00pm the next working day, did not make written application to the chief executive or delegate to terminate my training contract and did not provide a copy to myself. They also terminated my training contract without my consent on 4th December 2015. According to the Act, the penalty for this alone is a fine of $10000.
I wish to continue my apprenticeship with Swan Transit and complete my training.
I seek that you overturn the DTWD decision and recommend that I be re-instated.”
[16] The Applicant in his Form F2 – Unfair Dismissal Application provided the following information:
“1.2 What date were you notified of your dismissal?
4/12/2015
1.3 What date did your dismissal take effect?
22/2/2016
2.1 What outcome are you seeking by lodging this application?
Re-instatement of my apprenticeship with Swan Transit
3.2 Why was the dismissal unfair?
• Please see attached submission to the Dept of Training and Workforce Development.
• Please see attached Decision by the Dept of Training and Workforce Development
• Please see attached appeal to this decision that is now before the WAIRC.
[17] When the two applications are compared with each other it is clear that the Applicant is seeking the same effective remedy in both matters and the Applicant is relying upon the same argument and same facts in relation to the alleged serious misconduct in both matters.
[18] That the appeal before the WAIRC is in relation to the dismissal is without doubt.
[19] It is clear that the Applicant has raised matters in his appeal to the WAIRC which would be matters to which the exception in s.733 applies.
[20] The training contract between the Applicant and the Respondent remained in force until terminated by the decision of the Department on 22 February 2016. Although the Applicant was dismissed on 4 December 2015 it would appear that the relevant WA Act and Regs required the Respondent to continue to pay the Applicant under the training contract until it was terminated by the Department. To the extent that the Applicant was pursuing a claim or action before the WAIRC to be paid for the period from his dismissal on 4 December 2015 until the training contract was terminated on 22 February 2016 such a claim or action would be in relation to the dismissal but would not be caught by the Multiple Actions provisions because of s.733.
[21] That part of the Applicant’s appeal to the WAIRC may not be caught by the Multiple Action provisions because of the operation of s.733 highlights just how much of the Applicant’s appeal to the WAIRC is in relation to the dismissal.
[22] I am satisfied that the Applicant made an application in relation to the dismissal under a WA Act and that application has not been withdrawn by the Applicant. The application under the WA Act was made before the Applicant made his unfair dismissal application.
[23] The Applicant is clearly ‘double dipping’ in relation to making two applications in relation to the dismissal. The unfair dismissal application could not be made by the Applicant given the operation of the Multiple Actions provisions of the Act. The unfair dismissal application is dismissed because it was barred by operation of s.725 of the Act.
What is the date of dismissal for the purposes of the Unfair Dismissal jurisdiction of the Commission under Part 3-2 of the Act?
[24] Before embarking on a consideration of the application for an extension of time it is essential to determine when the dismissal of the Applicant took effect as the 21 day period specified in s.394(2)(a) only commences to run from the time that the dismissal took effect.
[25] This in turn will determine by how much the application in the present matter is out of time.
[26] There is no doubt that the Respondent gave notice of termination of employment to the Applicant on 4 December 2015 and that the Respondent intended, and advised the Applicant in writing, that the termination of employment was effective immediately.Just because the Respondent intended that its dismissal of the Applicant took effect on 4 December 2015 does not necessarily mean that it did so.
[27] The Applicant was employed by the Respondent as an apprentice mechanic and was employed under a training contract regulated by the Vocational Education and Training Act 1996 (the WA Act) and the Vocational Education and Training (General) Regulations 2009 (the WA Regs).
[28] Importantly, the Respondent did not have a unilateral right to terminate the training contract of the Applicant. The training contract could have been terminated by agreement of the parties, but no such agreement existed in this matter. The Respondent had a limited right to suspend the Applicant’s training contract and any termination of the Applicant’s training contract was subject to approval by the Chief Executive of the Department. If the training contract was terminated then the Applicant could appeal to the WAIRC against that decision.
The relevant provisions of the WA Act and the WA Regs are as follows:
S.60E . Training contracts
(1) A training contract is a contract under which —
(a) a person who is or will be an employer agrees the following —
(i) that a person who is or will be an employee will be employed while he or she fulfils the requirements of the contract in order to obtain a class A or class B qualification;
(ii) to train the employee in accordance with the contract;
(iii) to permit the employee to fulfil his or her obligations under the contract and to be trained and assessed in accordance with the contract;
(iv) that any time spent by the employee in performing his or her obligations under the contract and in being trained and assessed under the contract, whether at the employer’s workplace or not, is to be taken for all purposes (including the payment of remuneration) to be time spent working for the employer;
and
(b) the employee agrees to fulfil his or her obligations under the contract and to be trained and assessed in accordance with the contract.
(2) With the approval of the chief executive, 2 or more employers may enter into a training contract with one apprentice.
(3) A training contract must do the following —
(a) state the class A or class B qualification to which the contract relates;
(b) comply with the regulations and with any requirements imposed under the regulations.
(4) Subject to the regulations, a training contract —
(a) may be varied by the parties; and
(b) may be suspended by a party; and
(c) may be assigned by the employer to another person who employs the apprentice.”
S.60G . Terminating training contracts
(1) Subject to the regulations, a party to a training contract may terminate it.
(2) An employer who is a party to a training contract the probation period of which (if any) has expired must not terminate the contract unless —
(a) the apprentice has consented to the termination; or
(b) the chief executive has approved the termination.
Penalty: a fine of $10 000.
(3) The chief executive must approve the termination of a training contract under subsection (2) if satisfied —
(a) the employer has ceased or is about to cease business; or
(b) the employer is unable to fulfil the employer’s obligations under the contract due to a substantial change of circumstances that has occurred since the contract was entered into; or
(c) the apprentice has engaged in serious misconduct; or
(d) as to any matter prescribed,
but otherwise may refuse to approve the termination.
(4) A person who is dissatisfied by a decision made by the chief executive under this section may appeal against it to the Western Australian Industrial Relations Commission.
(5) On an appeal made under subsection (4) against a decision, the Commission must rehear the matter and may confirm the decision or set it aside and either substitute a decision the chief executive could make or order the chief executive to decide the matter again.
Reg.49 . Suspension by employer (Act s.60E)
(1) This regulation operates for the purposes of section 60E(4)(b) of the Act.
(2) This regulation does not —
(a) prevent the parties to a training contract agreeing to suspend it; or
(b) affect any entitlement an employer has to terminate a training contract during its probation period.
(3) An employer cannot suspend a training contract except on the ground that the apprentice has engaged in serious misconduct.
(4) To suspend a contract under subregulation (3), the employer must give the apprentice a written notice (the suspension notice ) that —
(a) states the training contract is suspended on the grounds that the apprentice has engaged in serious misconduct; and
(b) states when the suspension has effect (which must not be earlier than when the apprentice is given the notice); and
(c) describes the apprentice’s alleged misconduct.
(5) If an employer suspends a training contract under this regulation, the employer must give the chief executive a copy of the suspension notice before 5 p.m. on the next working day.
Penalty: a fine of $1 000.
(6) An employer may at any time cancel the suspension of a training contract by giving the apprentice a written notice stating the date on which the contract will cease to be suspended.
(7) If an employer cancels the suspension of a training contract under this regulation, the employer must notify the chief executive that the contract is no longer suspended before 5 p.m. on the next working day.
Penalty: a fine of $1 000.
(8) Unless it has ceased to be suspended, the employer, within 7 days after the date on which a training contract is suspended under subregulation (3), must apply to the chief executive for approval under section 60G of the Act to terminate the contract.
(9) While a training contract is suspended by an employer under this regulation the apprentice may attend any approved VET course required for the qualification to which the contract relates.
(10) While a training contract is suspended by an employer under this regulation —
(a) the apprentice must not attend the employer’s workplace; and
(b) the employer must pay the apprentice as if the contract were not suspended.
Penalty: a fine of $5 000.
(11) If an application made under subregulation (8) is refused, the suspension of the contract is taken to be cancelled on the day after the day on which the application is refused.
Reg.51. Approval of termination of training contract by chief executive (Act s.60G)
(1) To apply for the chief executive’s approval, under section 60G(2) of the Act, to terminate a training contract, the employer must —
(a) give the chief executive a written application that sets out the reasons why the employer wants to terminate the contract; and
(b) give the apprentice a copy of the written application.
(2) For the purposes of section 60G(3) of the Act, the chief executive must approve the termination of a training contract if satisfied the purpose of the contract has been or will be frustrated by the apprentice’s acts or omissions.
Reg.54 . Appeals
(1) A party to a training contract who is dissatisfied by a decision made in relation
to the contract by the chief executive under regulation 39, 46, 47, 48 or 52A may appeal against it to the Western Australian Industrial Relations Commission.
(2) On an appeal made under subregulation (1) against a decision, the Commission must rehear the matter and may confirm the decision or set it aside and either substitute a decision the chief executive could make or order the chief executive to decide the matter again.
[29] Where an employer exercises the right to suspend a training contract pursuant to s.60E and Reg.49, certain actions must be complied with. The employee must be given notice of the suspension, the Chief Executive of the Department must be given notice of the suspension, and, the employer must continue to pay the employee. It is not clear in the present matter as to whether the Respondent purported to or did in fact suspend the training contract of the Applicant.
[30] It is clear that the Respondent applied to the Chief Executive of the Department on 17 December 2015 for approval to terminate the training contract of the Applicant and that the Chief Executive of the Department approved the termination with effect from 22 February 2016.
[31] In the absence of any suspension of the training contract then at all times until 22 February 2016 the Applicant was engaged under a training contract with the Respondent. In circumstances where the Applicant was willing and able to comply with that contract then the Respondent was obliged to treat the Applicant as being engaged under that contract.
[32] Certainly the structure of the WA Act and WA Regs did not require the Respondent to suspend the training contract.
[33] In circumstances where the Respondent cannot terminate the training contract until the termination is approved by the Chief Executive of the Department is it possible for the Respondent to terminate the employment relationship independent of the termination of the training contract? The answer to this question is a very obvious and resounding: Yes.
[34] Section 386(1)(a) of the Act provides as follows:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative;”
[35] In both the Act and its predecessor legislation it has been held that termination of employment is not the same as termination of the contract of employment. This was most clearly stated in Searle v Moly Mines Limited, 2 where the Full Bench said:
“It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment.”
[36] The same applies in the present matter where, instead of the usual contract of employment, there was in place, as between the Applicant and the Respondent, a training contract under a WA State law which both constituted the employment contract and training arrangements for the Applicant.
[37] The Respondent gave notice to the Applicant through a Show Cause letter dated 23 November 2015 that it considered that the actions of the Applicant amounted to serious misconduct which was inconsistent with the continued employment of the Applicant by the Respondent. After receiving the Applicant’s response to the Show Cause letter which was given by the Applicant at a Show Cause meeting held on 30 November 2015, the Respondent advised the Applicant in writing on 4 December 2015 that the Respondent was terminating the Applicant’s employment immediately. The Applicant acknowledged in his application that he received the termination letter on 4 December 2015.
[38] It is without doubt that the Respondent at its initiative terminated the employment relationship existing between the Respondent and the Applicant on 4 December 2015. It is this date and not the date of approval of the termination of the training contract (22 February 2016) which is relevant for the purposes of s.386.
[39] For the purposes of s.386(1)(a) the Applicant was dismissed on 4 December 2015. Any unfair dismissal application made by the Applicant in relation to his dismissal had to be made within 21 days after the dismissal took effect. A dismissal does not take effect until it is communicated to the employee who is being dismissed. In the present matter the Applicant acknowledges that he was informed of the dismissal on 4 December 2015 and so the time for making an unfair dismissal application commenced to run from that day.
Should an extension of time be granted to the Applicant to file his unfair dismissal application?
[40] An extension of time to file the unfair dismissal application can only be granted if the Commission 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.”
[41] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 3 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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” [Endnotes removed]
[42] In the present matter where the Applicant was dismissed on 4 December 2015 the Applicant had until 29 December 2015 to file an unfair dismissal application. The fact that the Applicant had 25 days in which to file an unfair dismissal application flows from the operation of s.36 of the Acts Interpretation Act. The 21 day time limit specified in s.394 would have ended on Friday 25 December 2015. As that day was a public holiday, as was Monday 28 December 2015, then the two public holidays and the weekend cannot be included in calculating the 21 day period.
[43] The unfair dismissal application was filed 79 days or some 2 and half months out of time.
[44] The Applicant in his written material filed with the Commission explained the delay in making an unfair dismissal application as follows:
“My employer and I attended a dispute resolution meeting held by The Apprenticeship Board on 16 Dec 15. I was advised by the organiser of the process that would be undertaken by the DTWD regarding my training contract. On 22 Feb 16 the DTWD decided to approve my employers application to terminate my contract. The DTWD advised that if I was dissatisfied with their decision I could appeal to the WAIRC which I have done. My father, who is representing me in this matter, thought an alternative jurisdiction (WAIRC) was appropriate to resolve the issue. The act and regulations also state that the WAIRC is the next step after the DTWD decision. My father considered that whilst an appeal was underway the 21 days to apply to Fair Work was paused. On 16 Mar 16 my father contacted FWC and spoke to Tim Smythe regarding 21 days from dismissal. Mr Smythe stated that he was unsure if the 21 days still applied while an appeal was underway. Mr Smythe emailed a FWC Form 2 to my father and said that it would not hurt to apply anyway. My father filed my unfair dismissal application using E-filing. My father had significant problems uploading the files and nominating the number of supporting documents.”
[45] The Commission notes that the Applicant, acting on his father’s advice, chose to use the WA system to resolve the issue rather than using the Fair Work Commission.
[46] It would appear from all of the material filed by the Applicant in this matter that the Applicant considered that his dismissal occurred when the training contract was terminated by the Department on 22 February 2016. Given that the Applicant had received written confirmation of the decision of the Respondent to terminate the Applicant’s employment on 4 December 2015, the Applicant offers no explanation as to why he did not consider the letter dated 4 December 2015 and titled “Termination of Employment” as constituting his dismissal.
[47] The most that appears from the Applicant’s material is that the reason for not filing an unfair dismissal application with the Fair Work Commission was nothing more than waiting to see how matters developed through use of the WA Act and Regs in relation to the Respondent’s application for approval to terminate the training contract.
[48] Nothing put by the Applicant provides an acceptable reason for the Applicant delaying until 17 March 2016 to file an unfair dismissal application in relation to his dismissal which occurred on 4 December 2015.
[49] In the circumstances of the present matter, where the Respondent has to deal with the Applicant’s appeal to the WAIRC in relation to the termination of the training contract, the Respondent would be prejudiced if an extension of time was granted to the Applicant, as the Respondent would be required to run essentially the same case in two jurisdictions.
[50] Whilst the Commission is required to take into account the merits of the unfair dismissal application this is not the time to engage in a detailed consideration of the substantive merits of the Applicant’s case as neither the Applicant nor the Respondent have presented their cases as to merit. This factor is at best of neutral value in determining the application for an extension of time.
[51] Taking into account each of the relevant factors in s.394(3) the Commission cannot be satisfied that there are exceptional circumstances which would warrant the Commission granting an extension of time to the Applicant to file his unfair dismissal application.
[52] If the unfair dismissal had not been barred by s.725, the Commission would have dismissed the application as being out of time.
COMMISSIONER
1 (1966) P/L [2012] FMCA 5.
2 [2008] AIRCFB 1088 at pn 22.
3 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011]FWAFB 975.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR583528>
2