Mark Drinkwalter v Autolac
[2010] FWA 2141
•15 MARCH 2010
[2010] FWA 2141 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Autolac
(U2009/13691)
COMMISSIONER RAFFAELLI | SYDNEY, 15 MARCH 2010 |
Termination of employment, extension of time.
[1] This application was made under the Workplace Relations Act 1996 (the WR Act) before the WR Act repeal day. Consequently, the WR Act continues to apply (Item 11 Part 3 of Schedule 2, Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)) and Fair Work Australia will now deal with the application on that basis.
[2] Section 643(14) of the WR Act provides that an application under section 643 must be lodged within 21 days after the day on which termination took effect. It also says:
“OR within such period as the Commission allows on an application made during or after those 21 days.”
[3] Here Mr Mark Drinkwalter (the Applicant) did not lodge the application within 21 days of his termination by Autolac Pty Limited (the Respondent). His termination occurred on 30 June 2009. His application was lodged on 12 November 2009.
[4] On 30 December 2009 I invited the Applicant to provide reasons in writing as to why the lodgement time should be extended. I also invited the Respondent to provide its response. I do not propose to hold a hearing and have decided to deal with the matter on the basis of what is before me, including further reply submissions from the applicant.
[5] The onus in establishing that such time should be extended lies on the applicant. It is the applicant’s matter and it is the applicant that has failed to act in the manner prescribed in the Act.
[6] Within the relevant part of the Act a note appears referring to principles enunciated in Brodie Hanns v MTV Publishing [1995 67 IR 298.]
[7] I take due regard to those principles. Those principles are as follows:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[8] I now turn to those principles.
Acceptable explanation for the delay
[9] According to the Applicant’s solicitor the termination on 30 June 2009 was followed by a series of communications between the parties with a view to resolving the matter. It was said by the Applicant’s solicitors that on 17 August 2009 the Respondent had referred to possible inappropriate financial conduct by the Applicant during his employment. This had caused the Applicant to enquire further as to the basis of the allegation but the Respondent had not responded.
[10] However, no explanation has been given as to why it took so long after 17 August 2009 (when the Respondent repudiated any further discussion on the matter) for the application to be made on 12 November 2009. Even if it is true that “we had sought further clarification in regards to the matter, but no reply has been forthcoming” (the applicant’s solicitor’s submission of 28 January 2010) there is no indication as to when such approach was made.
[11] I am left with no relevant explanation as to the reason for the lengthy delay. In the circumstances, I find that there is no acceptable explanation for the delay.
Action taken by employee to contest the termination
[12] The submissions of both the Applicant and the Respondent indicate that following the termination of the Applicant’s employment, the Applicant through his solicitor took issue with the Respondent concerning several matters related to the ending of the employment relationship. I am satisfied that the Applicant did contest his termination other than by filing this application.
Prejudice to respondent
[13] Nothing was put that indicated that the Respondent would be prejudiced by the extension of time.
Merits of the application
[14] The material does not allow a determination as to the merit of the application, but I observe that the Respondent has raised some jurisdictional matters that may inhibit the application.
Fairness as between the applicant and other persons in a like position.
[15] This is not a relevant consideration.
Conclusion
[16] Having duly considered all the matters put to me by both parties in light of the principles enunciated in the Brodie-Hanns decision I am not prepared to exercise my discretion so as to allow the filing of this application out of time.
[17] The application is dismissed.
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