Luke Mowbray v Coffee Machine Industries Pty Ltd

[2018] FWC 6910

[2018] FWC 6910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Luke Mowbray
v
Coffee Machine Industries Pty Ltd
(C2018/4620)

COMMISSIONER WILLIAMS PERTH, 3 DECEMBER 2018

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Luke Mowbray (Mr Mowbray or the Applicant) under section 365 of the Fair Work Act 2009 (the Act). The respondent is Coffee Machine Industries Pty Ltd (the Respondent).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] Mr Mowbray’s application states that he was dismissed on 17 July 2018; one day after he commenced his employment with the Respondent. His application was made on 23 August 2018. The application was made after the 21 day time limit had passed.

[4] Consequently I wrote to Mr Mowbray explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submission to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Mr Mowbray has provided written submissions and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

The reason for the delay

[6] Mr Mowbray has explained there were a number of reasons his application was filed outside the 21 day time limit.

[7] Mr Mowbray says his first priority was dealing with an important Court proceeding in order to prevent him from being incarcerated. He explains he was required to appear in Court on 10 July 2018, 17 July 2018 and 31 July 2018.

[8] Mr Mowbray’s evidence is in addition to the ongoing Court proceeding the Respondent’s lack of cooperation by failing to provide him with notice of termination or payment of money he alleges was owed also resulted in the delay in making this application.

[9] Finally, Mr Mowbray says he made many phone calls and sent emails to Legal Aid seeking advice about the termination of his employment and after not receiving a response he decided to lodge the application.

[10] With respect to the Court proceeding it is not surprising that the Applicant sought to deal with this as a matter of priority. However, on the Applicant’s own evidence the first date the Applicant appeared at Court was prior to his employment commencing, the second date he appeared was the day he was dismissed and his final appearance was 31 July 2018. There was still an additional seven days available to the Applicant to lodge this application within the required timeframe.

[11] Therefore, I am not satisfied that this reason amounts to an acceptable reason for the delay in making this application.

[12] With respect to the Applicant’s submission regarding the Respondent’s lack of cooperation following his termination lead to the delay. On the limited information provided by the Applicant it is not clear how this prevented the Applicant from lodging the Applicant.

[13] Whilst the Applicant’s preference may have been to deal with these matters directly with the Respondent in the first instance, this in my view is not an acceptable reason for the delay. Employees are not entitled to delay making an application because they prefer not to do this whilst they are pursuing documentation and monetary claims with their employer.

[14] Lastly, with respect to the difficulty the Applicant experienced in seeking assistance from Legal Aid there is no information before the Commission about when this assistance was sought or over what period. It is also the case, unfortunately, that it is not uncommon for a person to experience difficulty to obtain assistance from a limited resource service such as Legal Aid.

[15] On the evidence before the Commission the Applicant never received any assistance from Legal Aid which ultimately did not prevent him from making this application; albeit out of time. I am therefore not satisfied that this reason amounts to an acceptable reason for the delay in making this application.

[16] Considering the Applicant’s reasons for the delay I am not satisfied that the reasons provided, either individually or when considered together, amounts to acceptable reasons for the delay in making this application.

Any action taken by the person to dispute the dismissal

[17] Mr Mowbray has not taken any other action to dispute his dismissal other than filing this application.

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

[18] 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

[19] Mr Mowbray has not completed question 3.2 of his application which asks an applicant to identify which section of the Act they allege a respondent has contravened.

[20] On the limited information before the Commission the challenge in Mr Mowbray’s case is that he is not able to point to any particular protection as the reason for the Respondent dismissing him.

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

[21] There is no information regarding fairness between the Applicant and other persons in a similar position.

Conclusion

[22] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[23] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and therefore must be dismissed.

[24] An order [PR702197] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 6 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR702196>