Malcolm Mangelsdorf v Minuzzo Project Management Pty Ltd

[2014] FWC 2502

[2014] FWC 2502

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Malcolm Mangelsdorf
v
Minuzzo Project Management Pty Ltd
(C2014/3298)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 APRIL 2014

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted.

[1] These Reasons for Decision reflect a decision I issued in the course of a hearing on 14 April 2014 and are published in accordance with advice I provided to the parties at that time.

[2] On 5 March 2014 Mr Mangelsdorf lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment with Minuzzo Project Management Pty Ltd (Minuzzo) on 20 December 2013.

[3] In its Employer’s Response (Form F8A), lodged on 12 March 2014, Minuzzo refuted Mr Mangelsdorf claim and objected to the matter proceeding on the basis that it was lodged outside of the time limit specified in s.366 of the FW Act.

[4] That section states:

“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.”

[5] On 21 March 2014 I issued directions relating to the extension of time issue. These directions confirmed that the extension of time issue would be considered at a hearing on 14 April 2014. They enclosed copy of s.366. These directions required Mr Mangelsdorf to:

“.... file in the Commission and serve on Minuzzo, by close of business 7 April 2014:

• A brief outline of his position with respect to the factors set out in section 366(2);

• Witness statements for any witness to be called with respect to the extension of time issue. Please note that this includes witness evidence which Mr Mangelsdorf himself may seek to give; and

• A copy of any document relied upon by Mr Mangelsdorf.”

[6] My directions did not restrict Minuzzo from providing evidence at this hearing but did not require that written material be forwarded in advance of the hearing. My directions concluded:

“Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned. Any enquiries with respect to these directions may be addressed to my office on tel: [phone] or [e-mail].”

[7] Mr Mangelsdorf did not provide material consistent with those directions. After being reminded of the need to provide written material, he forwarded his written submissions to the Fair Work Commission (FWC) on 8 April 2014. My Associate then provided that material to Minuzzo.

[8] I have accepted that material and taken it into account in considering the extension of time issue.

[9] Shortly before the hearing, Minuzzo provided a witness statement made out by Mr Minuzzo. That statement was not admitted into evidence.

[10] At the hearing on 14 April 2014 Mr Mangelsdorf further explained his position. Mr Putland from the Master Builders Association of South Australia represented Minuzzo and opposed the granting of an extension of time.

[11] I have considered whether Mr Mangelsdorf’s circumstances are exceptional, taking into account the factors specified in s.366(2).

[12] Mr Mangelsdorf’s written submissions did not explain the reason for his substantial delay in lodging the application. Instead, they addressed his position with regard to the merits of his application. In the hearing Mr Mangelsdorf advised that the reason for the delay was that he was not aware of a time limit for the making of this application and that he was unclear about whether he was an employee until the determination of a worker’s compensation claim he had made was concluded on 21 February 2014. Mr Mangelsdorf advised that, whilst he was aware of the Fair Work Commission web site and had accessed this to obtain wage and other employment related information, he only researched information about this application after 21 February 2014 and hence became aware of the time limit for an application of this nature.

[13] In this respect I have concluded that the reason for the delay was Mr Mangelsdorf’s lack of awareness of this provision of the FW Act and its associated time limit. I am not satisfied that this reason for the delay represents either an acceptable reason, or, for that matter, that it is characteristic of an exceptional circumstance.

[14] I am not satisfied that Mr Mangelsdorf took action, other than this belated application, to dispute the termination of his employment. He clearly took action to pursue a worker’s compensation claim but this is a claim of an entirely different nature.

[15] To the extent that Mr Mangelsdorf’s uncertainty about his employment status is asserted to be a factor contributing to the delay, I am not satisfied that he took steps to clarify this issue within the time limit and I note that this uncertainty did not limit his pursuit of his workers compensation claim.

[16] The extension of time, of itself, will prejudice Minuzzo.

[17] In terms of the merits of the application, there are significant factual differences between the parties. If Minuzzo can prove that the termination of Mr Mangelsdorf’s employment reflected a genuine redundancy based on work-related selection criteria, the application is highly likely to fail. Notwithstanding this, I have taken the merits of the application to be a neutral factor with respect to consideration of the extension of time issue.

[18] Comparisons of Mr Mangelsdorf’s circumstances with those of other persons in similar situations do not support an extension of time.

Conclusion

[19] Having considered all the material before me I concluded that Mr Mangelsdorf’s request for an extension of time, for what would be a significant period of time, should not be granted. His circumstances cannot be regarded as exceptional. The application must be dismissed accordingly. An Order (PR549672) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

M Mangelsdorf on his own behalf.

D Putland representing Minuzzo Project Management Pty Ltd

Hearing details:

2014.

Adelaide:

April 14.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR549671>