Joseph Smeets v Penny Miller Pty Ltd

[2014] FWC 3956

[2014] FWC 3956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Smeets
v
Penny Miller Pty Ltd
(U2014/6148)

COMMISSIONER WILLIAMS PERTH, 11 JULY 2014

Termination of employment - extension of time.

[1] Mr Joseph Smeets (Mr Smeets or the applicant), the applicant in this matter has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Penny Miller Pty Ltd (the respondent).

[2] I note the applicant asserts he was an employee of the respondent but this is disputed by Penny Miller Pty Ltd.

[3] Mr Smeets on his application says that he resigned on 31 January 2014 having notified the respondent previously of his intention. He says his dismissal took effect on 1 February 2014. Mr Smeets lodged this application on 15 April 2014.

[4] I note that on 1 April 2014 the Fair Work Commission (the Commission) received a letter from him headed “Complaint”. The Commission’s staff telephoned Mr Smeets the following day and he explained his intention was to make an unfair dismissal application. He was requested to and subsequently has completed the Form F2 Unfair Dismissal Application which was lodged on 15 April 2014.

[5] Assuming for the present purposes Mr Smeets was an employee of the respondent, and applying the most favourable interpretation of events for Mr Smeets, that his application was made on 1 April 2014 then this application has been lodged more than 21 days after the date his dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[6] Section 394 (3) of the Act allows the Commission to allow 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 section 394 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.”

[7] Having received the application I wrote to Mr Smeets and informed him of the above and invited him to provide anything in support of extending the time for this application to be made and Mr Smeets has provided submissions in reply to this request.

Are there exceptional circumstances?

The reason for the delay

[8] On his application Mr Smeets says that he advised the Commission on 20 January 2014 but was told to wait until he had actually left employment to proceed.

[9] In the further submission Mr Smeets has provided, he explains that these circumstances which had caused the delay was partly due to his diagnosed depression and because of the dispute regarding the nature of his “employment” with the respondent.

[10] As he puts it the respondent says he was not employed by them so how can he advise the Commission within 21 days of ceasing employment when he was apparently not employed by the respondent?

[11] Considering the reasons Mr Smeets has advanced for the delay in making this application. Whilst there is no further information as to what the interaction was between Mr Smeets and the Commission’s staff on 20 January 2014 the advice that he should wait until he had actually left employment to proceed with his application for unfair dismissal does not explain why he then made the application approximately 2 months after his alleged dismissal rather than within 21 days.

[12] Mr Smeets has not provided any medical evidence that would allow the Commission to conclude that having been diagnosed with depression he was rendered incapable of making this application earlier than he did.

[13] The fact the parties are in dispute regarding the nature of the relationship, being whether Mr Smeets was an employee or a contractor, does not explain why he made this application more than 21 days after his resignation, which he assumedly asserts was a constructive dismissal, took effect.

[14] Having considered the reasons Mr Smeets has put forward for not making this application within 21 days of his dismissal taking effect I am not satisfied that there is any explanation for the delay in this instance.

Any action taken by the person to dispute the dismissal

[15] There is no evidence that the applicant has taken any other action to dispute the dismissal.

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

[16] 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

[17] There is limited information regarding the merits of this application however I note that there is a real dispute as to the jurisdiction of the Commission given the respondent’s objection that the applicant was not an employee, however given these matters have not been fully ventilated the merits overall are a neutral factor in determining the application to extend time.

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

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

Conclusion

[19] The onus is on the applicant to demonstrate to the Commission that there are exceptional circumstances and that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[20] I have considered the information provided and the submissions. In this case there are no acceptable reasons for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[21] 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.

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

COMMISSIONER

Final written submissions:

Applicant, 28 May 2014

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