Jason Neale v J & S Pergola Installations

[2014] FWC 4536

[2014] FWC 4536

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Neale
v
J & S Pergola Installations
(U2014/7677)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 7 July 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 2 June 2014 Mr Neale lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with J & S Pergola Installations (J & S).

[3] In that application, Mr Neale advised that his dismissal took effect on 7 May 2014. He asserted that the application was lodged within time.

[4] The application was referred to me for consideration. On 18 June 2014 my Associate advised the parties that the extension of time issue would be considered through a telephone conference on 7 July 2014. The parties were provided with substantial background information relative to the application and extension of time issue. Mr Neale was required to provide a witness statement and a copy of any document relied upon, by 30 June 2014.

[5] No Employer’s Response (Form F3) to the application has been received.

[6] The Fair Work Commission (FWC) did not receive additional material from Mr Neale. I have noted that Mr Neale advises that he forwarded material in response to the FWC request in an envelope he advises was provided to him. I am not satisfied that any such envelope was attached to the 18 June 2014 correspondence.

[7] A sound file record of the 7 July 2014 conference was kept. Mr Neale participated in this conference. J & S was represented by Mr Mitchell.

[8] My decision on the extension of time issue was made on all of the material before me. Notwithstanding the absence of written material from Mt Neale I have taken into account the advice he provided in the conference which he agreed incorporated the information he advises he sent to the FWC.

[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[10] Section 394 states:

“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.”

[11] In terms of s.394(2) the application was made outside of the specified 21 day time limit. It was lodged at least 5 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Neale's circumstances can be regarded as exceptional for the purposes of this subsection.

[12] Mr Neale advises that the delay occurred primarily because he understood that he had to send the application within 21 days rather than ensure that it was lodged within 21 days. He asserts that he sent the material within 21 days. He also advises that a reason for the delay represented his difficulty in printing material provided to him in an electronic form. The information Mr Neale has provided does not adequately explain why the application could not have been lodged within time. I am not satisfied that either of these explanations described a circumstance which can, in any form, be regarded as exceptional.

[13] Mr Neale's application confirms that he was made aware of the termination of employment decision on 7 May 2014.

[14] Mr Neale agrees that he did not challenge the termination of his employment other than through this application.

[15] I do not consider that the granting of an extension of time would prejudice the respondent in this matter but that does not form a basis for an extension of time.

[16] The information before me does not enable a conclusion about the merits of the application so that I have regarded this as a neutral factor relative to the extension of time issue.

[17] Considerations of fairness relative to persons in similar circumstances to Mr Neale's do not support an extension of time.

Conclusion

[18] For the reasons I have set out above, Mr Neale's circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR552856) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

J Neale on his own behalf.

J Mitchell for the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 7.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552855>