Jesse Drover v The Grovedale Hotel T/A Warrenwood Pty Ltd

[2016] FWC 3780

[2016] FWC 3780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jesse Drover
v
The Grovedale Hotel T/A Warrenwood Pty Ltd
(U2016/6535)

VICE PRESIDENT WATSON MELBOURNE, 9 JUNE 2016

Application for relief from unfair dismissal remedy – Application for extension of time of lodgment – Whether exceptional circumstances – Fair Work Act, s.394.

[1] This decision is an amended version of a decision given on transcript on 3 June 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Jesse Drover in relation to the termination of his employment with the Grovedale Hotel T/A Warrenwood Pty Ltd.

[2] The application concerns an extension of time for filing an unfair dismissal application.  The termination occurred and took effect on 1 April of this year.  The application was filed and received by the Commission on 28 April by post.

[3] The application for an extension of time needs to be considered in accordance with subsection (3) of s.394 of the Act. The prima facie position is that time limits for the filing of applications should be complied with, but that time can be extended if the Commission is satisfied that there are exceptional circumstances taking into account the factors set out in that subsection.

[4] I consider each of those matters in turn.  The first is the reason for the delay and the reason appears mainly to be the reaction that Mr Drover had to the termination of his employment, exacerbated by his medical condition.  There is a psychiatric report filed in the matter which indicates the nature of the medical condition and Mr Drover today has given evidence about the impact of the termination on him.

[5] It appears that it happened without much notice and caused him a significant amount of anxiety because of his investment in the career of a chef that he had made with the Grovedale Hotel.  It appears clear to me on the basis of the psychiatric report and the evidence today that the impact of the termination on Mr Drover was well in excess of the impact on someone without those medical circumstances.

[6] It also appears that Mr Drover filled out an application and prepared to file it the day before the time limit expired, but because it was not delivered or posted by express mail, it did not arrive at the Commission until some days later.  That appears also to be a factor in the delay in filing the application.

[7] The next factor concerns when Mr Drover became aware that the dismissal occurred and whether he became aware that after it had taken effect.  The dismissal in question was said to be on account of redundancy and it occurred on the day that he was advised of the termination.  He did not become aware of the dismissal after it had taken effect, nor did he become aware in advance of the termination taking effect.

[8] The next factor is whether any action was taken by Mr Drover to dispute the dismissal.  It appears that this was not the case.

[9] The next factor is prejudice to the employer caused by the delay.  I do not consider there is any additional prejudice caused by the delay beyond the making of the application, in any event.

[10] The next factor is the merits of the application.  The employer has filed a response to the application which indicates that both apprentice chefs were made redundant at approximately the same time and the decision was taken for operational reasons to have a qualified chef employed in lieu of apprentice chefs and the employer has foreshadowed that its position is that the termination was a case of a genuine redundancy.

[11] There may be some strength to that argument.  There may also be some areas of argument and potential deficiencies in that argument.  Those matters are difficult to assess at this stage given that the employer does not appear in this application.  Even if the matter is not a matter of a genuine redundancy as defined, the termination may nevertheless be found to be a fair termination because it does appear to be related to business reasons of the employer.

[12] It is difficult to say more about the merits of the matter at this stage beyond noting the positive and negative aspects of the case on the part of both the employer and the applicant, Mr Drover.

[13] The next factor is the fairness between persons in similar positions.  I am not aware of others in a similar position and I do not consider that that factor has a significant bearing on the determination of this matter.

[14] In all the circumstances, I consider that there are exceptional circumstances justifying an extension of time being granted in this matter.  The primary factor is the particular psychiatric condition suffered by Mr Drover which meant that this ability to deal with his termination was diminished compared to other employees who may not suffer the same psychiatric limitations.

[15] I consider in all the circumstances there are exceptional circumstances and an extension of time should be granted.  I will publish this decision and issue an order granting the extension of time and the unfair dismissal application will proceed in the normal way under the administration of the Unfair Dismissal Unit of the Commission.

VICE PRESIDENT

Appearances:

Ms C. Tobin on behalf of Mr Drover.

No appearance on behalf of the Grovedale Hotel.

Hearing details:

2016.

Melbourne.

3 June.

Final written submissions:

Jesse Drover on 3 June 2016.

The Grovedale Hotel on 17 May 2016.

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