Michael Loftus v Earth Force Personnel Pty Ltd

[2013] FWC 6408

[2013] FWC 6408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Loftus
v
Earth Force Personnel Pty Ltd
(U2013/11261)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 SEPTEMBER 2013

Application for relief from unfair dismissal dismissed - extension of time not granted.

[1] Mr Michael Loftus’s employment with Earth Force Personnel Pty Ltd (Earth Force) ended on 1 September 2011. On 8 July 2013, Mr Loftus made an application alleging he was unfairly dismissed. That application was not made within 14 days of the date of the dismissal. 1

[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 allow the filing of his application.

[3] Both Mr Loftus and Earth Force made submissions and I advised that the decision in respect of this application may be made on the papers. Neither party commented on this proposal in their submissions. I have decided to determine the matter on the papers. Where there are any factual disputes I will for the purpose of this application determine them favourably to Mr Loftus.

Background

[4] On 20 October 2011, Mr Loftus lodged an earlier 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 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. 2

[5] Subsequently Mr Loftus filed this application.

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

[7] S.366(2) of the Fair Work Act 2009 (the Act) sets out the matters I must have regard to when deciding to exercise my discretion to grant an extension of time.

[8] Section 366(2) of the Act provides as follows:

FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(a) The reason for the delay

[9] Mr Loftus’s delay in lodging this application is a direct result of him having lodged the first application and subsequently discontinuing it. I have found that the decision to discontinue his first application was not as a result of duress, mistake or misrepresentation.

(b) whether the person first became aware of the dismissal after it had taken effect

[10] Mr Loftus submitted that he was not made aware of the decision to terminate his employment, if indeed he was an employee, until he was advised by his doctor that Earth Force refused to pay his medical bills as he was an independent contractor and had ceased to be engaged by them from 1 September 2011. It was after this date that Mr Loftus became aware that he was no longer employed by Earth Force.

(c) any action taken by the person to dispute the dismissal

[11] The original unfair dismissal application lodged on 20 October 2011 stated that Mr Loftus 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 Mr Loftus filed a notice of discontinuance on 7 March 2012.

[12] On 31 January 2013, Mr Loftus advised the Fair Work Commission that he wished to continue with his first unfair dismissal application.

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

[13] Earth Force submits this application is frivolous or vexatious. It further submits that Mr Loftus was engaged as an independent contractor and that he abandoned his contract without any notice to them. It submits that it has been the subject of a campaign of frivolous or vexatious allegations and that this has cost them both financially as well as taking up significant time.

(e) the merits of the application

[14] 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.

(f) fairness as between the person and other persons in a similar position.

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

Conclusion

[16] Mr Loftus lodged an application for unfair dismissal in 2011. Whether this application was lodged within time does not need to be determined. However the application currently before me was lodged nearly 2 years after Mr Loftus ceased working for Earth Force. Mr Loftus discontinued his earlier application. It is not appropriate in all the circumstances to extend time to permit Mr Loftus to pursue a claim that he chose to discontinue over 12 months ago.

[17] 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. An Order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 Note the amendment to the Fair Work Act extending the time for lodging of unfair dismissal applications to 21 days only applies to dismissals after 1 January 2013.

 2   Decision handed down in transcript of proceedings on 17 May 2013.

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