Matthew Nelson v Maek Pty Ltd

[2018] FWC 6859

[2018] FWC 6859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Nelson
v
Maek Pty Ltd
(U2018/8662)

COMMISSIONER WILLIAMS PERTH, 27 NOVEMBER 2018

Termination of employment - extension of time.

[1] Mr Matthew Nelson (Mr Nelson 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 Maek Pty Ltd (the Respondent).

[2] Mr Nelson alleges he was dismissed on 13 July 2018. The application was made on 27 August 2018.

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

[4] The Respondent in its form F3-Employer Response to Unfair Dismissal Application denies the Applicant was dismissed but agrees the Applicant’s employment ended on 13 July 2018.

[5] This decision deals only with the fact that the application has been made out of time and whilst the Respondent does not agree with all of the facts as stated by Mr Nelson in his application those particular facts that are relevant for the purposes of this decision, such as the date the employment relationship ended, are not contested.

[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 Mr Nelson 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 he was verbally dismissed on 13 July 2018.

[9] The day after the alleged dismissal the Applicant departed on a pre-planned one-week overseas trip. His evidence is that he requested, and it was agreed by the Respondent, that he be given time to remove his equipment and property from the Respondent’s site after he returned from holidays.

[10] The Applicant says following his return at the end of July 2018 he removed his belongings from the Respondent’s site and over the next subsequent weeks he followed up the Respondent regarding a written notification of termination and payment of outstanding money and entitlements.

[11] On 3 August 2018 the Respondent wrote to the Applicant as follows:

“Dear Matthew,

I am writing to you about the termination of your employment with MAEK Pty Ltd.

This is in accordance with clause 17A in your contract, where a mutual decision was agreed between yourself and MAEK to end your employment Immediately on Friday, 13th July, 2018.

You will be paid your accrued entitlements up to and including your last day of employment. This payment will be made in accordance with Clause 13 once the following items are returned:

- Uniform

- Purchase Order Books

- Please confirm that you have returned all tools and materials.

- Please confirm that you have retuned all car keys.”

[12] I note 3 August 2018 was the last date for the Applicant to lodge an unfair dismissal application within the 21 day statutory timeframe.

[13] The Applicant says he returned all of the Respondent’s property as requested.

[14] The Applicant has also provided a series of emails between himself and the Respondent of their ongoing communication regarding payments the Applicant says are outstanding.

[15] On 20 August 2018 the Respondent sent the Applicant an email stating all entitlements had been paid to the Applicant and setting out contractual reasons the Respondent would not pay an invoice submitted by the Applicant on 10 August 2018.

[16] The Applicant explains that it was at this point it became apparent to him the Respondent did not intend to honour his contract so on 22 August 2018 he spoke to ‘FairWork’ to seek advice and five days later he lodged this application.

[17] What is clear from the above is that from the date he was allegedly dismissed Mr Nelson communicated with the Respondent seeking to arrange the collection of property and payment of monies he believed he was owed and only when this was unsuccessful did he make this application.

[18] The reason for the delay in making the application was Mr Nelson’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 with their employer. Mr Nelson’s preference to hold off making this application is understandable however the legislation does not allow him to do this.

[19] 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

[20] The Applicant was made aware of his alleged dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[21] The Applicant has not disputed his alleged dismissal but rather the payments he says are contractual owed to him following the dismissal.

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

[22] 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

[23] There is limited information regarding the merits of Mr Nelson’s application. The parties clearly disagree as to what occurred on the day Mr Nelson’s employment ended. 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

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

Conclusion

[25] 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.

[26] 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.

[27] 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.

[28] An order [PR702118] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 30 October 2018.

Printed by authority of the Commonwealth Government Printer

<PR702117>