Mark Retford v Australian Federal Police
[2010] FWA 3861
•20 MAY 2010
[2010] FWA 3861 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mark Retford
v
Australian Federal Police
(C2010/3591)
COMMISSIONER DEEGAN | CANBERRA, 20 MAY 2010 |
General protections dispute involving dismissal – extension of time for lodging application
[1] The matter arises from an application filed on 4 May 2010 to deal with a general protections dispute involving dismissal pursuant to s.365 of the Fair Work Act 2009 (“the Act”). The applicant accepted a voluntary redundancy from the Australian Federal Police (“the employer or the AFP”) on 4 December 2009.
[2] Section 366 of the Act states
“SECTION 366 TIME FOR APPLICATION
366(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
366(2) FWA may allow a further period if FWA 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.”
[3] The application was made 91 days after the 60 day time statutory time limit expired.
[4] The matter was listed for hearing on 20 May 2010. The applicant was notified of the hearing by mail. Other attempts to contact the applicant by means of email, telephone and fax numbers provided were unsuccessful. The applicant did not appear at the hearing.
[5] The respondent was represented at the hearing by Ms A Wright, an in-house lawyer.
[6] As I was satisfied that all possible attempts to notify the applicant of the hearing had been made, and the applicant had addressed the matter of the time limit in a letter sent with the application, I decided to proceed with the hearing in his absence so as not to cause additional cost to the employer.
[7] In his letter dated 29 April 2010 (received with the application on 4 May 2010) the applicant set out a number of reasons for the delay in filing the application. In essence these were:
- He was unaware of section 365 processes and made attempts to deal with the matter through other avenues
- He sought advice from the AFP Association but was not advised of the Fair Work Australia processes
- He had attempted to pursue the matter with the Commonwealth Ombudsman, the ACT Public Service Commission (sic) and the Commonwealth Public Service Commission
- After contacting the Fair Work Ombudsman he was directed to Fair Work Australia.
[8] The applicant also noted that as he separated from the AFP on 4 December 2009, the December and January holiday period should be taken into account. He also claimed to be suffering from stress and anxiety as a result of the loss of his employment and that pursuing other employment had occupied much of his time.
[9] Ms Wright, on the respondent’s behalf, objected to time being extended for the lodgement of the application. It was her submission that the applicant had not made out the “exceptional circumstances” required for time to be extended and noted that the application was filed a full three months after the expiration of the initial 60 day period allowed for the filing of the application. It was also her submission that the reasons put forward by the applicant for the delay did not amount to exceptional circumstances and it was not clear what parts of his claim (which in itself was not clear) he had pursued through other avenues.
[10] The respondent did not claim prejudice, other than that involved with having to defend the claim some 5 months after the applicant’s employment had ended. As to merit, the respondent noted that while this could not be fully assessed without a hearing of the substantive matter the applicant’s employment had not been terminated by the employer but resulted from the acceptance of an offer of a voluntary redundancy. The respondent placed no weight on the matter of fairness as between the applicant and other persons in a like position.
[11] At the conclusion of the respondent’s submission I advised that I had decided that I would not extend time for the lodging of the application and that the application would be dismissed. It was my determination that there were no exceptional circumstances in this matter. The applicant put forward no acceptable reason for a delay of three months after the initial, very generous, time period for filing of the application. Clearly the efforts he made to pursue the matters though other avenues are an indication that he was capable of taking the necessary action at the time. I am prepared to accept that he was unaware of the processes available under the Fair Work Act 2009 but give this fact little weight. He clearly had the ability to seek the necessary advice. As to the timing of the Christmas break I give little or no weight. The few public holidays over that period have little bearing on the 60 day time period allowed for the filing of these applications. I do not accept that any stress or anxiety the applicant may have suffered was such as to affect his capacity to take the necessary action in the time frame provided in the legislation.
[12] I have taken into account the minor prejudice, caused by the delay, claimed by the respondent. I also note that there is no claim by the applicant that he contested the matter directly with the respondent at any time over the 5 month period following his acceptance of the voluntary redundancy.
[13] So far as the merits of the application are concerned, on the limited information provided I am unable to conclude that the applicant’s claim is totally without merit. It must be recognised, however, that his acceptance of a voluntary redundancy could make the applicant’s claim difficult to sustain.
[14] In the absence of any exceptional circumstances I am not prepared to extend the time period for the filing of the application. The application is dismissed. An order to that effect is published separately.
COMMISSIONER
Appearances:
No appearance from the applicant.
A. Wright, solicitor of the AFP.
Hearing details:
20 May 2010
Canberra.
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