Mark Roberts v Ozone Manufacturing Pty Ltd

[2013] FWC 2059

[2013] FWC 2059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Roberts
v
Ozone Manufacturing Pty Ltd
(U2012/15758)

COMMISSIONER MCKENNA SYDNEY, 11 APRIL 2013

Application for unfair dismissal remedy - application out of time - extension of time allowed.

[1] Mark Roberts ("the applicant") has lodged an application pursuant to s.394 of the Fair Work Act 2009 ("the Act") seeking an unfair dismissal remedy. By way of short background, the applicant contends his employment terminated by constructive dismissal on 17 September 2012 against the background of the failure by Ozone Manufacturing Pty Ltd ("the respondent") to pay his wages for approximately two months. It appears the applicant determined to accept the respondent's failure to pay wages as repudiating conduct on 17 September 2012, consequent upon communications with a Fair Work Ombudsman inspector. The application is presumptively out of time, in circumstances where the file before me records the application as having been lodged on 19 November 2012.

[2] The file record discloses a limited history of certain developments that occurred prior to the lodgement of the application on 19 November 2012. There is a record of an emailed acknowledgment of registration having been sent to the applicant from the tribunal on 21 September 2012. The applicant understood he had lodged an application for an unfair dismissal remedy electronically on 21 September 2012.

[3] From around 16 November 2012, the applicant made follow-up enquiries and subsequently forwarded emailed communications to the tribunal concerning his application. It appears that although there was a record of the applicant having registered for efiling on 21 September 2012 and there was emailed acknowledgement of that from the tribunal, there was no record of a Form F2 (Application for Unfair Dismissal Remedy) within the tribunal's electronic records. For his own part, the applicant is of the view he lodged an application on 21 September 2012, albeit the file records indicate a search by the tribunal’s system's administrator initiated in response to a query from the Unfair Dismissal Case Management Unit ("UDT") did not locate a record of the electronic lodgement of a Form F2 on 21 September 2012. In consequence, the applicant then lodged (or, although it is unclear, perhaps re-lodged) the application now numbered U2012/15758 on 19 November 2012.

[4] The respondent did not lodge a Form F3 Employer's Response to the applicant's application for an unfair dismissal remedy. The application was listed for conference by telephone before a Fair Work Commission conciliator on 22 January 2013. The respondent did not participate in the telephone conciliation. The conciliator's report noted attempts to contact the respondent following the scheduled conference were unsuccessful.

[5] On 8 February 2013, the UDT issued standard directions for an extension of time conference/hearing that was fixed for 9:00am on 5 April 2013.

[6] The applicant filed materials in accordance with the directions. The respondent did not file any materials pursuant to the directions. The file record indicates the UDT made various follow-up telephone calls to the respondent concerning the filing of its submissions.

[7] On 5 April 2013, there was no appearance by or on behalf of the respondent, nor any communication concerning the non-appearance. Given the history to the matter, I decided to proceed with the extension of time conference/hearing in the respondent’s absence.

Consideration

[8] Section 394 of the Act dealt (as it then stood at the time the application was made) with the time for making an application for an unfair dismissal remedy and extensions of time in the following terms:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a 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.”

[9] I turn now to consider the matters in s.394 of the Act.

[10] It is unclear what occurred in relation to the applicant's efiling of an application for an unfair dismissal remedy, but it is clear from the tribunal's own electronic records there was some form of electronic communication from the applicant on 21 September 2012 and an acknowledgement from the tribunal that same day. For his own part, the applicant thought he had successfully lodged an application on 21 September 2012, albeit as best as can be ascertained from IT investigations there was a record only of registration as an "eFiling User". The applicant also made follow-up inquiries in November 2012 in relation to that application and, upon being advised there was no record of the lodgement, then lodged his application.

[11] As to whether the person first became aware of the dismissal after it had taken effect, it appears the applicant determined to treat 17 September 2012 as the date he accepted the repudiation of the contract of employment in relation to the non-payment of wages. The applicant had that day received a detailed email from an inspector from the Fair Work Ombudsman which included, among other matters, information about contacting the tribunal to make an application for an unfair dismissal remedy.

[12] The applicant disputed matters by lodging or attempting to electronically lodge an application for an unfair dismissal remedy on 21 September 2012, within days of the date he treated as the effective date of the dismissal consequent upon the email from the Fair Work Ombudsman inspector on 17 September 2012.

[13] There was nothing before the Commission concerning prejudice to the employer, including prejudice caused by the delay.

[14] The merits of the application appear to favour the applicant in circumstances of his undisputed contention he had been unpaid for an extended period of time. In this regard, it may be noted the Fair Work Ombudsman is, the applicant submitted, prosecuting the respondent concerning alleged underpayments in relation to his own alleged underpayments and those of other employees.

[15] There was nothing of relevance before the Commission concerning fairness as between the applicant and other persons in a similar position.

Conclusion

[16] The documented matrix of circumstances concerning electronic communications between the applicant and the tribunal on 21 September 2012 and his subsequent follow-ups in November 2012 in relation to what he thought had been a successful efiling of an application on 21 September 2012 in my view constitute exceptional circumstances justifying an extension of time for the lodgement of this application. It is unclear exactly what may have gone wrong with the applicant's efiling on 21 September 2012, but I am prepared to proceed on an acceptance of the applicant's submission that he believed the lodgement had been effected that day.

[17] Considering the reason for the delay and the other matters in s.394(3) of the Act, I am satisfied as to exceptional circumstances such as to allow an extension of time. An order to this effect has been issued in conjunction with this decision.

[18] The file will now be remitted to the UDT for further programming.

COMMISSIONER

Appearances:

M. Roberts in person.

No appearance by or on behalf of the respondent.

Hearing details:

2013.

Sydney:

5 April.

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<Price code A, PR535404>