Jeffrey Walker v Service Stream Limited T/A Energy and Water

[2015] FWC 1245

[2015] FWC 1245

The attached document replaces the document previously issued with the above code on 26 February 2015.

Amends paragraph numbering.

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

Dated 26 February 2015

[2015] FWC 1245

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Walker
v
Service Stream Limited T/A Energy and Water
(U2014/16742)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 FEBRUARY 2015

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

[1] On 23 February 2015 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 31 December 2014 Mr Walker 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 Service Stream Energy & Water.

[3] In that application, Mr Walker advised that his dismissal took effect on 3 December 2014. He advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept his application out of time.

“My partner also became redundant during this period and we have not had any income for over a month ; so were unable to afford to post the form back until now.” 1

[4] The application was referred to me for consideration. On 14 January 2015 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 23 February 2015. Mr Walker was required to provide a witness statement and a copy of any document relied upon, by 16 February 2015.

[5] The Employer’s Response (Form F3) to the application advised that the correct name of the employer was Service Stream Limited T/A Energy and Water (Energy and Water). I have utilised the discretion available to the FWC to amend the application accordingly. The Form F3 also confirmed that Energy and Water objected to an extension of time.

[6] Mr Walker provided further information to the FWC relative to the extension of time issue. His statement was in the following terms:

“To whom it may concern,

I am writing this to provide a statement relative to the issue of the Extension of Time for the lodgment of my FWC application in December 2014.
As I explained briefly in my original application, at the time of lodging that application my partner also became redundant and we had not received any income for the previous month, so could not even afford the cost of posting the application. My application was due on Xmas eve and I required my partner’s assistance to complete it, as she had been the one keeping the notes/ records regarding the warnings & eventual dismissal.
However, my partner had also been going thru a redundancy process in her position as Senior Case Manager in the Youth Homelessness Sector, due to sector wide Government funding cuts, and was struggling to also deal with her work situation.
She was finally forced to accept their redundancy terms on the 22nd of December, due to our severe financial situation (and only two days until our daughters would face a bleak Xmas). As it was, we had to borrow money to get thru Xmas, until the redundancy payment was available, and faced a very stressful two days until Xmas to get it all organized.
Once her redundancy payment was received and the chaos of Xmas had passed, I attempted to lodge the application via our fax (for a whole day), but unsuccessfully. The following day I went to the Elizabeth South Post Office and paid over $20 so that we could get it faxed successfully, and finally get it lodged.
I then received an email on the 2nd Jan 2015, saying that the application had been received, but had not been signed. So I then had to resend the properly signed application; and received an email stating that, ‘your documentation received electronically by the Fair Work Commission on 5 January 2015 is taken to have been lodged in accordance with FWC Rules 2013.’

I did everything possible to lodge the application in the timeframe; and though unable to do so, I did all that I could to lodge it as soon as humanly possible. I ask that you please grant the extension of time for the lodgment of my FWC application, due to the difficult and unusual circumstance that we were facing at the time. Thank you for your consideration.
Regards,
Jeffrey Mark Walker”

[7] The extension of time issue was considered through a telephone conference on 23 February 2015. A sound file record of this conference was kept. Mr Walker and his partner, Ms Griffen attended this conference. Energy and Water was represented by Ms Dawson and Ms Tsiantas.

[8] Mr Walker utilised the opportunity in the conference to provide further information in support of his request for an extension of time. The information he provided was consistent with his earlier submissions.

[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) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 7 days outside of the 21 day time limit. It can only be pursued if an extension of time is granted pursuant to s.394(3). I considered whether Mr Walker’s circumstances can be regarded as exceptional for the purposes of this subsection.

[12] The information Mr Walker has provided in his application does not adequately explain why the application could not have been lodged within time. Mr Walker advised that he was aware of the 21 day time limit two weeks after his dismissal. I accept that Mr Walker went through a difficult time, particularly from 22 December 2014 while his partner was negotiating a redundancy arrangement. However, he has not provided a satisfactory explanation for the entirety of the period from when the termination of his employment took effect to the lodgement of the application. To the extent that Mr Walker explained the delay on the basis that his financial situation was such that he could not afford to post the application I am not satisfied that this reason has been substantiated.

[13] On the information before me, I am satisfied that Mr Walker was aware of the termination of employment decision on 3 December 2014 which I have taken as date that termination of employment took effect.

[14] On the information provided to me I am not satisfied that Mr Walker challenged the termination of his employment other than through this application.

[15] I have concluded that the granting of an extension of time is unlikely to prejudice the respondent in this matter. However, this does not provide a basis for an extension of time of itself.

[16] In terms of the merits of the application, the information before me indicates that Mr Walker was dismissed because Energy and Water concluded that he was unable to meet the requirements of his work role. The information before me indicates that Mr Walker was given additional training and warnings, including a final warning about his work practices. If those circumstances are established, Mr Walker would be unlikely to be successful in pursuing his application. I have concluded that the merits of Mr Walker’s application mitigate against an extension of time.

[17] Considerations of fairness relative to persons in similar circumstances to Mr Walker did not support an extension of time.

Conclusion

[18] For the reasons I have set out above, Mr Walker’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 (PR561285) reflecting this decision will be issued.

Appearances (by telephone):

S Griffin with the applicant.

R Dawson and G Tsiantas representing the respondent

Hearing (Conference) Details:

2015.

Adelaide:

February 23.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR561284>

 1   Form F2, para 1.4