Miro Vuleta v West Australian Turf Club T/A Perth Racing WA

[2016] FWC 46

[2016] FWC 46

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Miro Vuleta
v
West Australian Turf Club T/A Perth Racing WA
(C2015/6553)

COMMISSIONER WILLIAMS PERTH, 5 JANUARY 2016

Application to deal with an unlawful termination dispute.

[1] This matter concerns an application made by Mr Miro Vuleta under section 773 of the Fair Work Act 2009 (the Act).

[2] Section 774 of the Act requires that an application such as this must be made within 21 days after the employment was terminated. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:

“774 Time for application

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[3] Mr Vuleta’s application states that his employment was terminated on 10 June 2015. His application was made on 8 November 2015. The application was made after the 21 day time limit had passed.

[4] Consequently I wrote to Mr Vuleta explaining to him the requirements of section 774 and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Mr Vuleta has provided a written submission and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Background

[6] The Applicant had been employed for over 30 years. He was employed as the Facilities Supervisor. In around May 2014 he commenced a period of personal leave and ultimately had an operation to reconstruct his left knee.

[7] The application states he had utilised six months sick leave for his left knee reconstruction, however a complication caused an extended delay in him returning to work resulting in him requesting annual leave.

[8] The Applicant then required a reconstruction of his right knee and the Applicant says the surgery took place on 10 July 2015.

[9] At the time he was dismissed he had not worked since May 2014.

[10] The confirmation of termination of employment letter dated 10 June 2015 states that the termination was on the grounds that the Applicant was unable to perform the inherent requirements of his position.

[11] The applicant submits that:

• The Respondent was aware that the Applicant’s Surgery took place on the 10th July 2015.



• The position of Facilities Supervisor still remained vacant on the 10^th October 2015, and may still be vacant.



• The Applicant had confirmed verbally with a number of key staff that he was fit for work.



• The Applicant is of humble nature and felt the lack of contact post the 'twelve week' recovery time (whilst the position remained unfilled) was a clear indicator that the term 'operational difficulties' in his termination letter was not entirely factual.



• The reasons for the delay in lodging the application are:

(A) To provide evidence that the position of 'Facilities Supervisor' still remained unfilled as of 10th October 2015 identifies the termination as being unlawful.

(B) The Applicant was undergoing a strict 'twelve week' recovery regime.

(C) The Applicants representative ( his daughter) was providing sole care for both the Applicant and his wife, whilst also working in a full time capacity and tending to her own family needs. This itself resulted in a significant delay of investigating this further for the Applicant.

(D) The Applicant’s lack of understanding of his rights, prevented and delayed the lodgement of any action without representative assistance.

• The Applicant alleges that Perth Racing have long been seeking an avenue to terminate his employment and upon request a paper trail of minutes from meetings and incidents can be shown dating as far back as 2013.



• Within seven days of the Applicants sick leave expiring, he was called in and terminated by the Respondent.

[12] The Applicant feels that the thirty three plus years of service provided, did not warrant such an aggressive response, and that an invitation for a return to work program should have been extended to October 2015, considering the job was still open.

Are there exceptional circumstance?

The reason for the delay

[13] One reason for the delay is that apparently the Applicant wanted to have evidence that his position remained unfilled and it is submitted this identified the termination as being unlawful. Whilst not filling the position might from the Applicant’s perspective, have assisted him in his case against the Respondent, waiting for evidence of this to be available is not an acceptable reason for the delay in making an application that the Parliament has expressly required be made within 21 days of the employment being terminated. It is not unusual that evidence in support of an Applicant’s case will need to be obtained after the application is made and this is not an acceptable reason to delay making an application.

[14] The other reason given is the fact that after his surgery the Applicant had a 12 week recovery regime. Firstly there is no medical evidence provided that during the 12 weeks the Applicant was so incapacitated he was unable to make an application. Secondly the 12 week period began after his surgery and the Applicant was not prevented from making the application before his surgery on 10 July 2015 which was one month after he was dismissed on 10 June 2015.

[15] The fact that the Applicant’s daughter was his representative and was occupied caring for the Applicant and his wife, in addition to her other personal responsibilities is not an acceptable reason for delay when the Applicant could have chosen to seek alternative representation to advise him and lodge an application if he wished. Again as mentioned above the Applicant had the option of making the application before he underwent his surgery.

[16] The fact that the Applicant did not understand his rights is a common circumstance is not an acceptable reason for delay in making an application.

[17] I am not satisfied that there are acceptable reasons for the delay in making this application.

Any action taken by the person to dispute the dismissal

[18] There is no evidence that the Applicant took any action to dispute his dismissal other than the making of this application.

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

[19] There was a lengthy delay in this application being made however 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

[20] It is not readily apparent from the application what is the particular contravention of section 772 that is alleged. The respondent denies there has been any contravention of section 772. Consequently I view the merits of the application as a neutral factor in this decision as to whether or not the Commission should extend the time for making the application.

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

[21] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[22] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[23] The application has not been made in accordance with the Act and is dismissed. An order to that effect will now be issued.

COMMISSIONER

Final written submissions:

Applicant, 30 November 2015.

Respondent, 11 December 2015

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575720>