Matthew Murray v Idl Pty Ltd T/A Kitchen Innovations

[2014] FWC 9312

[2014] FWC 9312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Murray
v
IDL Pty Ltd T/A Kitchen Innovations
(U2014/9264)

COMMISSIONER WILLIAMS PERTH, 23 DECEMBER 2014

Termination of employment - extension of time.

[1] Mr Mathew Murray (Mr Murray or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is IDL Pty Ltd T/A Kitchen Innovations (the respondent).

[2] Mr Murray was dismissed on 18 July 2014. The application was made on 15 September 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] The respondent has objected to the application on the basis that it was made out of time and separately on the basis that the applicant is barred by section 725 and 732 of the Act from making the application because he has commenced other proceedings in the Magistrates Court in relation to his employment.

[5] This decision deals only with the fact that the application has been made out a time.

[6] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 of the Act below.

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[7] Submissions have been provided by both parties regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[8] The applicant explains that his employment ended on Friday, 18 July 2014 following an argument with one of the company’s two Directors, Mr Daniel Loft (Mr D. Loft). The applicant says that following the argument on the Friday Mr D. Loft said he was fired for gross misconduct.

[9] The applicant says he believed that Mr D. Loft was just blowing off steam. The applicant collected his tools but says he was aware the company had been struggling financially and they were looking at having to let all staff go and he honestly believed that whilst he was no longer employed it would be a redundancy arrangement.

[10] The applicant says some time after his dismissal he spoke with the other Director Mr Ian Loft (Mr I. Loft) who the applicant says knew there was still money outstanding from his final pay. The applicant says he discussed with Mr I. Loft how some of the employment entitlements under the award had not been paid and Mr I. Loft advised him that he would ensure that he was paid everything he was owed.

[11] Because of this the applicant says he did not apply for this application sooner and it was not until the end of August 2014 when he followed up the company regarding the outstanding money and requested a termination of employment letter that the company advised they would not be paying him any redundancy money and instead that he was dismissed for gross misconduct.

[12] The applicant said that he tried to negotiate with the company for the money that was owed and when those negotiations seemed to be leading nowhere realised he would be unable to sort it out and would need to lodge this application.

[13] The applicant has provided a series of emails where he was communicating with Mr D. Loft and Mr I. Loft.

[14] In an email to the two Directors dated 31 August 2014 Mr Murray refers to monies he believes he was owed including redundancy pay and mentions he has been to “Fair Work”. In reply on 4 September 2014 Mr I. Lock advised that “...you were never advised you would be paid redundancy, you were dismissed by Dan for gross misconduct.”

[15] The parties swapped further emails arguing their respective views on this and other issues. The applicant then made this application on 15 September 2014.

[16] What is clear from the above is that from the date he was dismissed Mr Murray was aware his employer was saying that he was dismissed for misconduct. Mr Murray however chose to believe that this was not actually the case and that in due course the employer would come to the view that they should pay him redundancy pay. Mr Murray then communicated with the respondent seeking to negotiate payment of monies he believed he was owed including redundancy pay and only when this was unsuccessful did he make this application.

[17] The reason for the delay in making the application was Mr Murray’s decision to use this approach rather than immediately make this application. This in my view is not an acceptable reason for the delay. Employees are not entitled to delay making an unfair dismissal remedy application because they prefer not to do this whilst they are pursuing monetary claims against their employer. Mr Murray’s preference to hold off making this application is understandable however the legislation does not allow him to do this.

[18] Considering the explanations for the delay in making this application I am not satisfied that there is any acceptable reason for the delay in this instance.

Whether the person first became aware of the dismissal after it had taken effect

[19] The applicant was made aware of his dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[20] The applicant has disputed his dismissal in correspondence with his employer.

Prejudice to the employer (including prejudice caused by the delay)

[21] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[22] There is limited information regarding the merits of Mr Murray’s application. The parties clearly disagree as to what occurred on the final day between Mr D. Loft and Mr Murray. In the circumstances the merits of the application is a neutral consideration when considering the extension of time question.

Fairness as between the person and other persons in a similar position

[23] This is not a relevant factor in this matter.

Conclusion

[24] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[25] I have considered the information provided and the submissions. In this case there is no acceptable reason for the delay in making the application and considering the other factors there is nothing of significance weighing in favour of finding there where exceptional circumstances.

[26] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[27] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 13 October 2014.

Respondent, 26 November 2014.

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