Jason Murphy v DJ Ruskin Machining and Maintenance

[2017] FWC 6424

[2017] FWC 6424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Murphy
v
DJ Ruskin Machining and Maintenance
(U2017/9439)

COMMISSIONER SIMPSON BRISBANE, 13 DECEMBER 2017

Application for an unfair dismissal remedy – application out of time – reasons for delay do not amount to exceptional circumstances – application dismissed

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Jason Murphy who alleges that the termination of his employment with DJ Ruskin Machining and Maintenance (DJ Ruskin) was unfair.

[2] Mr Murphy commenced employment with DJ Ruskin on 22 September 2008 as a Home Finder until his termination on 31 July 2017. Mr Murphy’s unfair dismissal application was lodged on 30 August 2017, and was therefore made nine days outside the 21 day period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission.)

[3] The matter was listed for Hearing by telephone of the Jurisdictional matter on 4 December 2017. Mr Allan Grant of Grant & Simpson Lawyers was granted leave under s.596 to appear on behalf of Mr Murphy. Mr Damien Ruskin appeared on behalf of DJ Ruskin.

[4] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with an unfair dismissal pursuant to s.394 of the Act must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[5] Section 394 of the Act provides:

“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.”

Reason for the delay

[6] Mr Murphy provided reasons for the delay in his Form F2 Unfair Dismissal application and in his Statement. 1 Mr Murphy submitted he received his termination letter from DJ Ruskin on 4 August 2017. Mr Murphy submitted that after reading the letter the second time he noticed it set out his employment was terminated due to misconduct and performance issues. Mr Murphy submitted it was around this time he realised he had not been paid his long service leave entitlements.

[7] Mr Murphy submitted he made his first call to the Fair Work Ombudsman (FWO) on 4 August 2017. Mr Murphy said FWO returned his call on 8 August 2017 which he missed due to being at a forklift licence training course. Mr Murphy submitted he made contact with FWO on 11 August 2017 who told him to contact the Office of Industrial Relations (OIR).

[8] Mr Murphy submitted he contacted the OIR on 14 August 2017 where he was advised he had six years to take legal action in respect of the matter. Mr Murphy submitted he understood that was both for pursuing the long service leave and unfair dismissal. Mr Murphy submitted he became aware it only applied for long service leave at a later time.

[9] Mr Murphy submitted he then pursued the issue of long service leave with DJ Ruskin. He submitted that on 25 August 2017 he received an email from Mr Ruskin advising him that as his employment was terminated for misconduct and performance issues, DJ Ruskin did not have to pay Mr Murphy a pro rata on long service leave.

[10] Mr Murphy submitted he then sent the letter from DJ Ruskin dated 25 August 2017 to the OIR. Mr Murphy submitted that on 29 August 2017 he received advice from the OIR confirming he was not entitled to a long service leave. Mr Murphy submitted the OIR then raised issues of a 21 day time limit to file an unfair dismissal application. Mr Murphy submitted this was the first time he was made aware that the time limit was only 21 days.

[11] Mr Murphy submitted he then immediately filed an unfair dismissal application with the Commission on 30 August 2017.

[12] Mr Murphy submitted he relied on two factors for an extension of time to be granted:

1. The delay caused by the employer giving information as to reason to dismissal and the delay caused by employer to notify Mr Murphy there was a dispute about payment of his long service leave. Mr Murphy submitted it was not until this time that he became aware of the need to file an unfair dismissal application.

2. Correspondence between Mr Murphy and the OIR shows he was still actively contesting dismissal even though he had not lodged an application with the Commission.

[13] Mr Murphy accepted the last day to file application within time would have been 21 August 2017.

[14] Mr Murphy accepts he received his letter of termination on 4 August 2017 that stated the reasons for his dismissal. Mr Murphy should therefore have been on notice from 4 August 2017 that he had been dismissed for misconduct. From this point, Mr Murphy still had 18 days to file his application within time.

[15] I do not accept Mr Murphy’s submission that taking part in a forklift training course during the week commencing 7 August would hinder his ability to fill out an unfair dismissal application. Further, I am of the view that the fact Mr Murphy made contact with the OIR and was not advised he needed to file an unfair dismissal application to pursue the long service leave entitlement, does not excuse for his failure to do so within time.

[16] I am not inclined to accept that the reasons Mr Murphy provided for the delay amount to exceptional circumstances. The submissions related to s.394(3)(a) do not tend to support the granting of an extension.

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

[17] It was not disputed that Mr Murphy’s employment was terminated on 31 July 2017. However the parties provided different versions of events in relation to the conversation took place immediately prior to Mr Murphy’s dismissal.

[18] Mr Murphy gave oral evidence that when he arrived at work on the morning of 31 July, Mr Ruskin told him they needed to talk. Mr Murphy said he walked into office and found that his desk had been cleaned out and belongings were placed against the door. Mr Murphy submitted Mr Ruskin said Mr Murphy had been treating employees badly.

[19] Mr Murphy said there was no discussion as to whether he would be given a chance to challenge any issues and Mr Ruskin told him to pack his shit and leave. Mr Murphy said Mr Ruskin had no intention of talking or communicating with Mr Murphy as all of his belongings were against the wall. Mr Murphy said he and Mr Ruskin did not speak for the rest of the day, and there was no discussion about misconduct or about any performance issues.

[20] Mr Ruskin gave evidence that at around 7:15am when Mr Murphy arrived at work, he told Mr Murphy they needed to talk. Mr Ruskin said Mr Murphy said words to the effect of “I know what this is fucking about – and I won’t have it.” Mr Ruskin said he told Mr Murphy they needed to talk about his treatment of an employee on Friday. Mr Ruskin said Mr Murphy began to swear and raise his voice, and at that point Mr Ruskin told Mr Murphy words to the effect of “you’re finished, your stuff is there – go.” Mr Ruskin agreed he had packed up Mr Murphy’s belongings so that Mr Murphy could not get to this computer should there be any issues. Mr Ruskin submitted he was only intending to send him on holidays but after the altercation he terminated Mr Murphy’s employment.

[21] Despite the conflicting versions of events submitted by the parties in relation to the conversation on 31 July 2017, it is not disputed Mr Murphy was aware that he had been dismissed at the time of his dismissal. The submissions related to s.394(3)(b) do not tend to support the granting of an extension.

Any action taken to dispute the dismissal

[22] Mr Murphy submitted that correspondence between the OIR and himself shows he was actively contesting his dismissal even though he had not lodged an application with the Commission.

[23] The fact Mr Murphy was in contact with the OIR does not demonstrate he took action to dispute his dismissal, rather, it shows he disputed his entitlement to his pro-rata long service leave. In fact, Mr Murphy conceded in his submissions and oral evidence that had he been paid his long service leave entitlements, he likely would not have filed an unfair dismissal application with the Commission.

[24] The submissions related to s.394(3)(c) do not tend to support the granting of an extension.

Prejudice to the employer

[25] Mr Murphy submitted his application nine days out of time. This would not cause significant prejudice to the employer if an extension were granted. The submissions related to s.394(3)(d) support the granting of an extension.

Merits of the application

[26] Mr Murphy submitted the matter was subject to factual contest and s.394(3)(e) should be treated as a neutral consideration. Mr Ruskin accepted that he maintained there was a valid reason for dismissal and that the dismissal was fair. I accept that it is appropriate to treat the issue of s.394(3)(e) as neutral.

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

[27] The parties did not make any submissions of provide any evidence in relation to fairness between Mr Murphy and persons in a similar position. It is therefore appropriate to treat the issue of s.394(f) as neutral.

Conclusion

[28] I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time is not granted. The unfair dismissal application is not within jurisdiction and therefore must be dismissed.

COMMISSIONER

Appearances:

Mr A. Grant of Grant & Simpson Lawyers for the Applicant

Mr D. Ruskin for the Respondent

Hearing details:

2017,
Brisbane:

4 December

 1   Statement of Jason Murphy dated 22 September 2017.

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<Price code C, PR598329>