Jordache May v Greg Ledger Pty Ltd T/A Greg Ledger Chartered Accountant

[2014] FWC 6785

[2014] FWC 6785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordache May
v
Greg Ledger Pty Ltd T/A Greg Ledger Chartered Accountant
(U2014/10797)

COMMISSIONER WILLIAMS PERTH, 1 OCTOBER 2014

Termination of employment - extension of time.

[1] The applicant in this matter Mr Jordache May (Mr May or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Greg Ledger Pty Ltd T/A Greg Ledger Chartered accountant.

[2] Mr May was dismissed on 3 June 2014 and his dismissal took effect the same day. Mr May made his application 10 July 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to grant a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.”

[5] Submissions have been provided by Mr May regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] Mr May explains the reason for the delay in making his application was that he did not know about the services the Commission offered dismissed employees and first learnt about these services from speaking to his peers and he then looked into it himself.

[7] Mr May explains he could not afford a lawyer and researched making the application on his own. This took a while because of his state of mind, in that losing his job caused him to be in a state of despair and depression. He says his application took more time to be made because of the late start in preparing and time taken to understand case histories on the Commission’s website.

[8] Mr May explains he did not think he was worthy of a hearing until he read on the Commission’s website the different reasons one can seek help.

[9] Regarding the reasons for the delay in Mr May making this application the fact an applicant is not aware that they are able to make an unfair dismissal application is not an unusual situation. Similarly not being able to afford a lawyer is not an unusual situation for a dismissed employee to be in. The resulting need for a dismissed employee to make an application themselves is quite common.

[10] It must be appreciated that the onus is on Mr May to provide evidence in support of his explanations for the delay that will satisfy the Commission that what occurred were exceptional circumstances. Mr May has not provided any information to the Commission regarding his health, which he refers to as being part of the reason for the delay in making this application, which would satisfy the Commission that his health was so poor that he was simply unable to make the application at all prior to when he did on 10 July 2014.

[11] None of these reasons for the delay are acceptable reason for the delay in making the application.

Any action taken by the person to dispute the dismissal

[12] The applicant has not otherwise sought to dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[13] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[14] There is limited information provided by the parties on which the Commission could form a view regarding the merits of Mr May’s application. Consequently the question of merit is a neutral factor for the purposes of the determination of the extension of time application.

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

[15] This is not a relevant factor in this matter.

Conclusion

[16] The onus is on Mr May to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by Mr May. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[17] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[18] Consequently there will be no further proceedings regarding Mr May’s application and his file will be closed.

[19] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 7 August 2014

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