Mitchell Barnes v Vermont Hire Pty Ltd

[2015] FWC 4399

[2015] FWC 4399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mitchell Barnes
v
Vermont Hire Pty Ltd
(U2015/4504)

VICE PRESIDENT WATSON MELBOURNE, 3 JULY 2015

Application for relief from unfair dismissal – Application lodged out of time – Whether time for lodging application should be extended – Whether exceptional circumstances – Fair Work Act 2009, s.394.

[1] This decision, edited from a decision on transcript on 19 June 2015, concerns an application to extend the time limit for the making of an application for unfair dismissal remedy by Mr Mitchell Barnes pursuant to s.394 of the Fair Work Act 2009 (the Act). The unfair dismissal application concerns the termination of Mr Barnes’ employment with Vermont Hire Pty Ltd (Vermont Hire).

[2] I am required to consider whether the application filed by Mr Barnes by telephone on 1 April of this year was within time, and if it was not within time, whether the time limit should be extended pursuant to s.394(3) of the Act.

[3] The termination of Mr Barnes' employment occurred on 10 March 2015.  The application was made by telephone on 1 April 2015.  In my view, it is clear that the application was therefore lodged on the twenty-second day after the termination took effect and was therefore outside the 21 day statutory limit for making an application.

[4] It is therefore necessary for Mr Barnes to satisfy the Commission that the time limit should be extended by one day, to enable the application to be accepted as a valid application under s.394. As I have said, s.394(3) indicates the test that the Commission is required to apply. That is whether the Commission is satisfied that there are exceptional circumstances, taking into account six matters which are listed there in that subsection.

[5] I propose to consider each of those matters.  First, in terms of the reason for the delay, Mr Barnes contends that he took action to discuss the termination and his concerns arising from it, prior to contacting the Commission on 1 April, and that his preference was to resolve the matters directly with the employer as an alternative to taking an application of this type.

[6] However, it appears from the correspondence that the issues raised with the employer related to payments, rather than a challenge to the termination seeking a remedy for unfair dismissal.  The matters that were sought to be raised and resolved with the employer appear now to have largely been resolved, subsequent to lodging the application. Those matters related to matters other than the challenge to the dismissal, which is inherent in an unfair dismissal application.

[7] Mr Barnes also indicates that personal circumstances intervened during the relevant time which made it difficult for him to focus on the requirements to file an application within time, that he had difficulty researching and determining the nature of time limits, and he has difficulty understanding lengthy written material.  He said that these factors in combination accounted for the reason for the delay.

[8] I have had regard to all of that evidence in relation to those matters, however I am not satisfied that there was a justifiable reason for the delay.  It appears to me that it was open to Mr Barnes to make inquiries before 1 April, as he did on 1 April, and seek to lodge an application if he was genuine in challenging the dismissal under the unfair dismissal provisions of the Act.  The reasons advanced do not, in my view, amount to understandable or justified reasons for the delay.

[9] The second factor in s.394(3) is whether Mr Barnes first became aware of the dismissal after it had taken effect. It appears clear that he became aware of the dismissal on the day that it took effect, 10 March, and I have regard to that factor in considering whether exceptional circumstances exist.

[10] The third matter is whether any action was taken by Mr Barnes to dispute the dismissal. I note that Mr Barnes states that he took action to pursue his entitlements with the employer but said that he did not see any point disputing the dismissal or working again in a small business in light of the circumstances that he had encountered.  That appears to confirm that there was no actual action to dispute the dismissal prior to the lodgement of the application on 1 April.

[11] The next factor concerns prejudice to the employer, including prejudice caused by the delay. In a sense, any application under s.394 causes some prejudice to an employer. It appears that the application was brought to the employer's attention shortly after it was lodged, and I do not consider that there was any prejudice to the employer outside the normal circumstance of lodging an application, and no prejudice caused by the delay.

[12] The next factor concerns the merits of the application.  I note that this employer is a small business.  The Small Business Fair Dismissal Code would apply to any application. Mr Barnes spoke to the employer about moving on in January 2015 and agreed to keep working until such time as a replacement was found.  The employer then found a replacement and terminated Mr Barnes' employment shortly before the replacement commenced.  Those circumstances alone cast significant doubts on the strength of any unfair dismissal application.  I do not consider on what has been advanced today, and on the material on the file, that the merits of the application for an unfair dismissal remedy are strong.

[13] The final factor is fairness between the person and other persons in a similar position.  I am not aware of other persons at this employer in the same or similar position, and I do not think that questions of fairness between persons arise in the circumstances, beyond obviously the need to ensure that a consistent test is applied to the extension of time applications, and the requirement for exceptional circumstances.

[14] Taking into account all of those factors, I am not satisfied that there exceptional circumstances relating to the delay, although the delay was only one day.  I do not consider that the circumstances are exceptional.  In the light of that finding it follows that I must decline to grant an extension of time.  The application is lodged out of time and, accordingly, is dismissed.

VICE PRESIDENT

Appearances:

Mr M. Barnes on his own behalf.

Ms N. Howells-Schramm and Ms A. McNicol of VECCI on behalf of Vermont Hire Pty Ltd.

Hearing details:

2015.

Melbourne.

19 June.

Final written submissions:

Mr Barnes on 18 June 2015.

Vermont Hire on 17 June 2015.

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