Mark Hopgood v Alternate Railway Safeworking Pty Ltd

[2014] FWC 2798

[2014] FWC 2798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Hopgood
v
Alternate Railway Safeworking Pty Ltd
(U2014/5937)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 APRIL 2014

Application for relief from unfair dismissal.

[1] On 25 March 2014, Mr Mark Hopgood made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009.

[2] Mr Hopgood’s employment with Alternate Railway Safeworking Pty Ltd (Alternate Railway) ended on 17 February 2014. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Preliminary matters

[4] Alternate Railway applied for permission to have a legal practitioner represent them as it was submitted that it would permit the matter to be dealt with more efficiently. Mr Hopgood did not oppose the application and I granted the application as I considered that it would enable the matter to be dealt with more efficiently.

Are there exceptional circumstances?

[5] The Commission may allow a further period for the application to be made by a person under subsection (1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;

[6] Mr Hopgood gave evidence that he was not aware of the unfair dismissal regime and did not know that he could make this application. He further gave evidence that he contacted his union but it would not assist him because he was not a financial member. He was not told by them that he could make an unfair dismissal application. He said he could not afford to pay for legal advice. He was advised by a friend two days before he made the application that he could make an application and he contacted the Commission who referred him to Jobwatch who told him that his application was out of time and that he could lodge an application and seek an extension of time.

[7] Mr Hopgood submitted that there was no way most ordinary people would know about the Commission. No information about unfair dismissal was provided to him at the time of his dismissal or with his employment separation certificate.

[8] Alternate Railway submitted that ignorance of the unfair dismissal regime is not unusual. Further it was submitted that even accepting Mr Hopgood was not able to get assistance from his union, there are other sources of information. It was submitted that not being able to afford legal advice is also not unusual.

[9] While I accept that Mr Hopgood was ignorant of the unfair dismissal regime, that of itself is not sufficient to find that there are exceptional circumstances. Having been advised by his union that he was unfinancial and that they would not provide him with advice, Mr Hopgood took no steps to seek further advice about his rights. This weighs against the grant of an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[10] Mr Hopgood was aware of this dismissal when it occurred. This weighs against the granting of an extension of time.

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

[11] Mr Hopgood gave uncontested evidence that he attempted to contact Alternate Railway to discuss what had happened. Mr Hopgood denied that he was provided with an opportunity to come into the office to discuss his dismissal. This weighs in favour of granting an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[12] Alternate Railway submitted that they would be prejudiced if an extension of time were granted. No evidence was called to support this submission. This criterion is neutral.

(e) the merits of the application;

[13] Mr Hopgood was terminated for serious misconduct. It was alleged that he placed threats on his Facebook page directed at Alternate Railway’s managing director. It was submitted that Mr Hopgood had previous warnings about inappropriate Facebook posts and abusive comments directed at the managing director. Mr Hopgood denied making the Facebook posts. As there has not been a full hearing on the facts in dispute, no findings about the merits of the case can be made. This criterion is neutral.

(f) fairness as between the person and other persons in a similar position.

[14] No submissions were made on this criterion.

Conclusion

[15] Nothing put to the Commission by Mr Hopgood would support a finding that there are exceptional circumstances warranting the granting of an extension of time. Mr Hopgood unfamiliarity with the unfair dismissal regime and his inability to afford legal representation are not unusual. His application for an extension of time is dismissed and therefore his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

M Hopgood on his own behalf.

A Sutton for the Respondent.

Hearing details:

2014.

Melbourne:

29 April.

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