Mark Ribbans v Ctel Group Pty Ltd
[2012] FWA 3306
•18 APRIL 2012
[2012] FWA 3306 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Ribbans
v
Ctel Group Pty Ltd
(U2011/14605)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 18 APRIL 2012 |
Termination of Employment - Extension of Time.
[1] This decision broadly reflects a decision I issued at the conclusion of a hearing convened today to consider an extension of time application. It has been produced in written form primarily for the benefit of the respondent to this matter who did not attend this hearing.
[2] On 13 December 2011 Mr Ribbans lodged applications pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the following businesses:
● Ctel Pty Ltd (U2011/14604)
● Ctel Technologies Pty Ltd (U2011/14490) and
● Ctel Group Pty Ltd (U2011/14605)
[3] Conciliation with respect to these applications did not occur as the respondent did not participate.
[4] The applications were lodged outside of the 14 day time limit specified in s.394 of the FW Act. The parties were given substantial advance notice of the hearing listed for today to determine the extension of time issue. Following advice from Mr Leo, a Director of Ctel Technologies Pty Ltd and Ctel Group Pty Ltd, to the effect that he did not intend to attend this hearing, Mr Leo was advised that an adverse finding may be made in his absence. After the hearing of this matter the following advice was received from Mr Leo:
“Your stated understand with respect to Ctel Pty Ltd in liquidation is to the best of my knowledge correct.
Your stated understand with respect to Ctel Group Pty Ltd and Ctel Technologies is to the best of my knowledge correct.
Should the adjournment be granted then Ctel Group Pty Ltd and Ctel Technologies Pty Ltd intend appointing solicitors to represent then and will the instruct.
Further, and on limited investigation, it is our understanding the Fair Work Australia process caters for monies to cover the projected costs of the action to be placed into trust. It is our intention to instruct the solicitors to seek such orders prior to proceeding with the matters of the alleged claims.
For Ctel Group Pty Ltd and Ctel Technologies Pty Ltd
Yours sincerely,
Per: Zane Leo” (sic)
[5] At the hearing Mr Siow, of counsel appeared for Mr Ribbans and advised that the applications against Ctel Pty Ltd and Ctel Technologies Pty Ltd were withdrawn. Mr Siow confirmed that the application against Ctel Group Pty Ltd was pursued and that Mr Ribbans had worked for companies associated with Ctel Group Pty Ltd for at least 10 years.
[6] The issue of whether an application was made within the period required in subsection 394(2) is one of the initial matters which must be decided before consideration of the merits of an application.
[7] Subsections 394(2) and (3) state:
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if 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.”
[8] The application was lodged some seven days outside of the 14 day time limit. I have considered whether an extension to this time limit should be allowed on the basis that Mr Ribban’s circumstances are exceptional having taken into account the factors set out in s.394(3). I have reached a decision on the extension of time issue on the information before me.
Reason for the Delay
[9] Mr Ribbans became aware of the termination of his employment on 22 November 2011. He acted promptly to visit his lawyer and he and his lawyer only became aware of the late lodgement well after the applications were lodged. His lawyer’s advice 1 was that:
“Our client’s employment was terminated by letter dated 22 November 2011. He first consulted our firm on or about 24 November 2011. During that consultation, he instructed our firm to lodge the Application.
The Application was subsequently lodged on 13 December 2011. We cannot offer an explanation as to why this occurred, however, the reason for the delay was clearly an oversight on the part of our firm, and not any fault of our client.”
[10] I am satisfied that Mr Ribbans has an acceptable reason for this delay and that this reflects representative error on the basis that he reasonably expected the application to be lodged within time. Had the delay been longer, actions taken by Mr Ribbans to follow up his application might well have become significant. However, in these circumstances, the reason for the delay favours the granting of an extension of time.
Awareness of the Dismissal
[11] Because Mr Ribbans became aware of the termination of his employment on the day upon which it took effect, and acted accordingly, this factor does not impact on the extension of time issue.
Action taken by Mr Ribbans to dispute the termination of his employment
[12] Mr Ribbans acted within two days of the termination of his employment to visit a lawyer and request that the application be lodged. His actions in this respect favour the granting of an extension of time.
Prejudice to the employer
[13] On the information before me I am not satisfied that there is any significant prejudice to the employer apart from the obvious prejudice associated with allowing the application to proceed. I have taken this into account in reaching a conclusion.
Merits of the application
[14] Mr Ribbans has provided information in support of the merits of his claim. From the limited information before me it is clear that the respondent disputes various of the bases upon which the claim is made.
[15] I do not consider that it is necessary or appropriate that I make any findings with respect to the merits of the application. Indeed, it may be other preliminary issues specified in s.396 become relevant to this matter. However, on the material before me, Mr Ribbans’ claim warrants an opportunity to be heard and an extension of time should not be refused on the basis that the claim lacks any merit.
Fairness issues
[16] I have considered Mr Ribbans’ circumstances in the context of the approach adopted by Fair Work Australia to similar situations and believe that this favours the granting of an extension of time.
Conclusion
[17] For the reasons I have specified I am satisfied that Mr Ribbans’ circumstances should be regarded as exceptional so as to warrant the granting of an extension of time for the lodgement of the application. The time limit specified in s.394(2) is extended to 13 December 2011.
[18] The application has been listed for a hearing on the merits at 10.00 am on 7 May 2012, in Adelaide. Mr Leo’s advice of today’s date indicates that the respondent may be represented in this hearing. It is open to Ctel Group Pty Ltd or its representative to request that this hearing be conducted by way of a video-link if this is available. Any such request should be made as a matter of urgency as the timing of any such request may impact on the availability of such a facility. Additionally, to the extent that the respondent wishes to pursue a security for costs application or asserts that the application cannot proceed on the basis of other matters identified in s.396, this may be considered at the 7 May 2012 hearing. Again, however, Ctel Group Pty Ltd is on notice that a failure to participate in that hearing may mean that adverse findings are made in its absence.
SENIOR DEPUTY PRESIDENT
Appearances:
A Siow counsel for the Applicant.
Hearing details:
2012.
Adelaide:
April 18.
1 Rossi Legal Letter of 2 April 2012
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