Marc Newson v Ernst & Young Services Pty Limited T/A Ernst & Young

[2013] FWC 5368

[2013] FWC 5368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marc Newson
v
Ernst & Young Services Pty Limited T/A Ernst & Young
(U2013/7236)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 AUGUST 2013

Application for relief from unfair dismissal dismissed - no exceptional circumstances.

[1] On 6 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Marc Newson (the Applicant). The application notes that the Applicant’s employment was terminated by Ernst and Young Services Pty Limited T/A Ernst and Young (the Respondent) on 8 December 2011.

[2] By way of background, the Applicant filed an application for relief for unfair dismissal on 15 February 2012 and discontinued that matter on 4 May 2012 as the result of a settlement agreement between the parties.

[3] As the Applicant’s employment was terminated in 2011, correspondence was sent to the Applicant on 16 July 2013 advising him of the provisions of s.394 of the Act at the time of his dismissal. Division 5 of Part 3-2 of the Act provided inter alia that an application for unfair dismissal “must be made within 14 days after the dismissal took effect”. As such, I directed the Applicant to file submissions, witness statements and documentary evidence in support of an extension of time for lodging his unfair dismissal application by close of business, 31 July 2013.

[4] On 21 July 2013, the Applicant sent correspondence to the Fair Work Commission (the Commission) which was not responsive to my direction.

[5] On 24 July 2013, further correspondence was sent to the Applicant informing him of his requirement to file submissions, witness statements and documentary evidence. A further period of time was afforded to the Applicant to file the required material by close of business, 2 August 2013.

[6] On 30 July 2013, the Applicant sent correspondence which was once again not responsive to my direction. Further, the Applicant failed to file any material in support of an extension of time to file his application.

[7] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[8] As the Applicant did not file any material to support his application for an extension of time, I have decided to determine the application on the papers.

[9] At the time of the Applicant’s dismissal, the Act provided that an application for unfair dismissal remedy “must be made within 14 days from the date of dismissal” or “within such further period as FWA allows under subsection (3).”

[10] Section 394(3) of the Act provides as follows:

(3) The FWA may allow a further period for the application to be made by a person under subsection (1) if the FWA 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.

[11] Having regard to the material before me and taking into consideration the provisions set out in s.394(3) of the Act, I am satisfied that there are no exceptional circumstances to allow a further period of time for the Applicant’s application to be made.

[12] Consequently the application for an unfair dismissal remedy must be dismissed. An Order to this effect will be issued today.

DEPUTY PRESIDENT

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