Michael Loftus v Earth Force Personnel

[2013] FWC 5612

[2013] FWC 5612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Michael Loftus
v
Earth Force Personnel
(C2013/5504)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 SEPTEMBER 2013

Application to deal with an unlawful termination dispute - extension of time not granted - application dismissed.

[1] Mr Michael Loftus’s employment with Earth Force Personnel Pty Ltd (Earth Force) ended on 1 September 2011. On 7 August 2013, Mr Loftus made an application under section 773 of the Fair Work Act 2009 (the Act) alleging that Earth Force had taken adverse action against him by terminating his employment. He also raises allegations of assault. The application was not made within 60 days of the date of the dismissal.

[2] The issue to be decided is whether there are exceptional circumstances which would warrant an extension of time being granted to Mr Loftus to file his application.

[3] To assist Mr Loftus, I provided him with an extract from the Act which set out the matters that I must have regard to in deciding whether to grant an extension of time.

[4] Mr Loftus made submissions in support of his application and on 16 September 2013 I asked the parties if they wished to have a hearing of the application or if the matter could be determined on the papers. Mr Loftus advised that the matter could be determined in chambers, on the papers.

Background

[5] On 20 October 2011, Mr Loftus lodged an unfair dismissal application in relation to his dismissal. On 7 March 2012, a notice of discontinuance was filed on behalf of Mr Loftus by his representative Mr Wainwright of the CFMEU. Mr Loftus subsequently sought in 2013 to have the notice of discontinuance set aside. On 17 May 2013, I dismissed Mr Loftus’s application 1 as I was satisfied that the notice of discontinuance was not filed by mistake and there was no evidence that any duress was applied to Mr Loftus. Further I did not consider that there was any misrepresentation which would invalidate the notice.

[6] Subsequently Mr Loftus filed another unfair dismissal application. Mr Loftus applied for an extension of time and that application was dismissed. 2

[7] Mr Loftus submitted material to support his contention that he was employed by Earth Force and that his employment was terminated without his knowledge.

[8] However Mr Loftus did not address the criteria in s.774(2) of the Act which sets out criteria which the Fair Work Commission (the Commission) must consider if it is to allow a further period of time to the Applicant.

The reason for the delay: s.774(2)(a)

[9] Mr Loftus has not provided any explanation for the delay in lodging this application. While he submitted that he did not know of the termination until Earth Force refused to pay his medical expenses and his doctor told him in October 2011 that Earth Force said he had left work voluntarily, Mr Loftus has not explained why he did not lodge this application until August 2013.

Any action taken by the employee to dispute the termination: s.774(2)(b)

[10] The original unfair dismissal application lodged on 20 October 2011 stated that the Applicant had not become aware of the dismissal until 19 October 2011. Earth Force raised a number of jurisdictional objections to the application, in particular that Mr Loftus was not an employee, that his employment was not terminated and that the application was out of time. The CFMEU on behalf of the applicant filed a notice of discontinuance on 7 March 2012.

[11] On 31 January 2013, Mr Loftus advised the Commission that he wished to continue with his first unfair dismissal application. Mr Loftus then lodged a further unfair dismissal application. There is no doubt that Mr Loftus disputed his dismissal once he became aware that Earth Force said he had abandoned his engagement with them.

Prejudice to the employer (including prejudice caused by the delay): s.774(2)(c)

[12] Earth Force submitted this application is frivolous or vexatious. It submits that Mr Loftus was engaged as an independent contractor and that this is Mr Loftus’s third attempt to agitate his claim.

The merits of the application: s.774(2)(d)

[13] Given that there has been no hearing in relation to the merits of this application I am not able to make an assessment of the merits. However for the purpose of this application I will consider this criterion favourably to Mr Loftus.

Fairness as between the person and other persons in a like position: s.774(2)(e)

[14] This criterion is not relevant in all the circumstances.

Conclusion

[15] The application currently before me was lodged nearly two years after Mr Loftus ceased working for Earth Force. Having regard to all the circumstances there are no exceptional circumstances warranting an extension of time and the application for an extension of time is dismissed.

DEPUTY PRESIDENT

 1   Decision handed down in transcript 17 May 2013

 2   [2013] FWC 6408

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