Marcel Gutsohn v Kimberley College Ltd
[2012] FWA 4376
•23 MAY 2012
[2012] FWA 4376 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marcel Gutsohn
v
Kimberley College Ltd
(U2012/5031)
COMMISSIONER GOOLEY | MELBOURNE, 23 MAY 2012 |
Application for extension of time.
[1] On 13 February 2012 Mr Marcel Gutsohn (the Applicant) made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the FW Act).
[2] The Applicant’s employment with Kimberley College Ltd (the Respondent) ended on 22 December 2011. The application was therefore not made within 14 days of the date of the dismissal.
[3] The application was listed for an extension of time hearing on 15 May 2012.
[4] The Applicant was employed by the Respondent as a teacher and had been employed from 22 January 2004. On 18 December 2011 the Respondent sent the Applicant a letter terminating his employment. In that letter the Respondent advised the Applicant that his position was redundant. That letter advised the Applicant that he was entitled to pro rata long service leave. However the Applicant did not receive any payment at that time. 1
[5] The Applicant received the letter of termination on 22 December 2011 and he did not contest the termination of his employment. On 28 December 2011 the Applicant wrote to the Respondent seeking his entitlements namely notice, severance pay and pro rata long service leave. He also asked for a reference. 2
[6] On 6 January 2012 the Applicant faxed the Respondent seeking an employment separation certificate. 3
[7] On 16 January 2012 the Applicant again wrote to the Respondent seeking his entitlements and advised that he would go to the school so that the matters could be finalised. 4
[8] The Applicant met with Mr Paul Thomson the Principal of the College. In that meeting, in response to the Applicant’s claim for notice, Mr Thomson said that he had given him sufficient notice. The Applicant explained that the Respondent was required to give him four weeks’ notice before the end of term.
[9] The Applicant explained that he was entitled to pro rata long service leave and redundancy pay. The Respondent then told the Applicant that his employment had been terminated for gross misconduct, “for refusing to teach with a teaching partner and making remarks about a member of staff to other staff members.” 5 The Respondent said as a consequence he was not obliged to make the payments to the Applicant.
[10] The Applicant lodged a complaint with the Fair Work Ombudsman in relation to his entitlements and he lodged an unfair dismissal claim on 20 January 2012. 6
[11] The Applicant claimed he was given inappropriate legal advice that he should not lodge both claims as they were inconsistent. He then withdrew his unfair dismissal application.
[12] He received a letter from the Respondent sent on 1 February 2012 in which the Respondent set out in writing its reasons for the termination. The Applicant received this letter on 2 February 2012. 7
[13] The Applicant became a father on 4 February 2012. The Applicant sought legal advice and then on 13 February 2012 the Applicant lodged this application.
[14] In determining whether to grant an extension of time, section 394(3) of the FW Act provides that Fair Work Australia must be satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay;
[15] The Applicant submitted that the reason for the delay was that he was misled as to the real reason for the dismissal and it was not until he received the letter on 2 February 2012 that he knew of the reason for his dismissal.
[16] This submission is not supported by the evidence. The Applicant was told on 16 January 2012 by Mr Thomson that the real reason for the termination of his employment was serious misconduct and not, as stated, redundancy. The Applicant then lodged an unfair dismissal application. He withdrew that application because he was told his claims for redundancy pay and for unfair dismissal were inconsistent. There was no evidence that the Applicant was told he should withdraw his unfair dismissal application. The Applicant is not suggesting that the advice about the inconsistency of the two claims amounted to representational error.
[17] Subsequently the Applicant received a separation certificate that stated that the last date of employment was 20 January 2012. The Respondent said this date was an error and I accept that submission. I do not accept that the Applicant was confused about the date of the termination of his employment. Irrespective of the rights or wrongs of the Respondent’s conduct, the Applicant accepted his employment ended when he received the letter of termination on 22 December 2011.
(b) whether the person first became aware of the dismissal after it had taken effect;
[18] The Applicant was not made aware of the real reason for the termination of his employment until 16 January 2012.
(c) any action taken by the person to dispute the dismissal;
[19] The Applicant submitted that he actively disputed his dismissal. This submission is not consistent with the evidence. The Applicant did not contest his dismissal when first notified. He did dispute the Respondent’s failure to pay his entitlements. He only contested his dismissal when he was told the real reason for the termination of this employment.
(d) prejudice to the employer (including prejudice caused by the delay);
[20] The only prejudice relied upon by the Respondent was that the Principal’s time would be taken up defending the claim.
(e) the merits of the application;
[21] On the material before the Tribunal, the Applicant was denied any procedural fairness in respect of the termination of his employment. There is insufficient evidence before the Tribunal to determine if there was a valid reason for the termination of the Applicant’s employment.
(f) fairness as between the person and other persons in a similar position.
[22] There were no submissions made on this criterion.
Conclusion
[23] I am not satisfied that there are exceptional circumstances warranting an extension of time. The Applicant was aware from16 January 2012 that redundancy was not the real reason for the termination his employment.
[24] He lodged an application for unfair dismissal remedy on 20 January 2012 and then withdrew it after receiving legal advice. There is no suggestion of representational error. The only thing that changed after he withdrew his unfair dismissal application was that he received written reasons for the termination of his employment and an employment separation certificate that said the last date of employment was 20 January 2012.
[25] Had there been a jurisdictional objection to the first unfair dismissal application I would have found on the material before the Tribunal, that there were exceptional circumstances warranting an extension of time. In circumstances where the Respondent hid its reasons for the termination of the Applicant’s employment behind a redundancy and only revealed the real reason when the Applicant sought his entitlements would constitute exceptional circumstances. However as the Applicant withdrew that unfair dismissal application after he was aware of the reasons for the termination relied upon by the Respondent, he could no longer rely upon those exceptional circumstances. I do not accept that there are any exceptional circumstances that warrant the granting of an extension of time to lodge the application.
[26] I therefore dismiss the application for an extension of time.
COMMISSIONER
Appearances:
T Walthall for the Applicant.
P Thomson for the Respondent.
Hearing details:
2012.
Brisbane.
May 15.
1 Exhibit A1 at [1]
2 Ibid at [2]
3 Ibid at [3]
4 Ibid
5 Ibid at [6]
6 Ibid at [8]
7 Ibid
Printed by authority of the Commonwealth Government Printer
<Price code A, PR524130>
0
0
0