Jonathan Lee v United Equipment Pty Ltd T/A United Forklift & Access Solutions

[2014] FWC 3735

[2014] FWC 3735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Lee
v
United Equipment Pty Ltd T/A United Forklift & Access Solutions
(U2014/6223)

COMMISSIONER WILLIAMS PERTH, 5 JUNE 2014

Termination of employment - extension of time.

[1] Mr Jonathan Lee (Mr Lee or the applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) asserting that he had been unfairly dismissed by United Equipment Pty Ltd T/A United Forklift & Access Solutions (the respondent).

[2] The application was lodged on 4 April 2014. The application states the applicant was notified of his dismissal on 13 March 2014 and that his dismissal took effect the same day.

[3] Section 394(2) and (3) of the Act provides that:

“(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.”

[4] The application was made after the 21 day time limit.  This decision deals with whether or not a further period should be allowed for the applicant to make the application.

[5] On filing his application Mr Lee appears not to have recognised or appreciated that his application was made after the 21 day time limit had passed and provided no explanation for the delay in making his application.

[6] Consequently I wrote to Mr Lee on 12 May 2014 explaining the situation in terms of section 394 of the Act and inviting him to provide any evidence and submissions in support of the Commission allowing him further time to make his application. The letter explained a response was required by 27 May 2014. The letter was posted and emailed to Mr Lee. As at the date of that decision nothing has been received from Mr Lee nor has there been any contact from him.

Consideration

[7] I turn to consider the particular factors specified in section 394(3) of the Act.

[8] There is no explanation for the delay in making the application.

[9] Mr Lee became aware of his dismissal on the day it took effect.

[10] There is no evidence that Mr Lee took any action to dispute his dismissal beyond making this application.

[11] The prejudice to the employer would not be an issue in this case.

[12] There is limited information before the Commission and the merits of the application would be a neutral consideration.

[13] The issue of fairness between the applicant and other persons is not relevant.

[14] There is nothing before the Commission which would support a conclusion that there are exceptional circumstances in this case that would warrant the Commission extending the time for Mr Lee to make his application. The application has been made outside the 21 day time limit and so cannot proceed.

[15] An order dismissing the application will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR551475>