Mr Allan Magann v Evolution Trafic Controll T/A Evolution T/C

[2013] FWC 1402

[2013] FWC 1402

FAIR WORK COMMISSION

DECISION

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

Mr Allan Magann
v
Evolution Trafic Controll T/A Evolution T/C
(U2012/13711)

COMMISSIONER ASBURY BRISBANE, 6 MARCH 2013

Application for unfair dismissal remedy - extension of time - application dismissed.

Background

[1] This Decision concerns an application by Mr Allan Magann under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Evolution Traffic Control. The application was listed for jurisdictional hearing on 18 January 2013 on the basis that it was filed outside the time allowed in s.394(2) of the Act. The Applicant communicated on a number of occasions with my Associate prior to the date of the hearing, and filed material in relation to the extension of time issue. The Applicant did not attend the hearing and provided no excuse for his non-attendance prior to the commencement of the hearing.

[2] When the Applicant failed to attend at the scheduled commencement time of the hearing, the matter was stood down and my Associate contacted him to enquire as to his whereabouts. There is a file note outlining what the Applicant said in response to this query. It is sufficient to say that the Applicant indicated in no uncertain terms that he did not intend to attend the hearing scheduled on that date, or any hearing, and did not give a reasonable excuse for this.

[3] The hearing resumed and I dismissed the Application on the basis that it was filed outside the time required in s.394(2) of the Act, and I was not satisfied that there were exceptional circumstances justifying an exercise of the discretion under s.394(3) to extend the time for making the application, taking into account the matters set out in that section. I also indicated that I would issue written reasons for that Decision. Those reasons are set out below.

Evidence and submissions

[4] The Applicant was employed from 17 January 2011, and states in his application for an unfair dismissal remedy that the date he last attended work was 5 September 2012. The Applicant nominated that date as the date upon which he was notified of his dismissal and his dismissal took effect. The Applicant made his unfair dismissal application on 1 October 2012, a period of 12 days outside the time required in s.394(2), if he was dismissed on 5 September 2012.

[5] The Applicant also queried whether his application had been made outside the required time, on the basis of a pay slip dated 25 October 2012 stating that he had been refunded a uniform deposit of $250 and had been paid his accrued annual leave. In his submission the Applicant stated that he had returned his equipment 14 days before receiving that payment and queried whether his termination date was 11 October 2012.

[6] It appears from the application for an unfair dismissal remedy that the Applicant’s employment ceased when a manager of the Respondent failed to provide him with an affidavit to support him in his attempts to obtain a drivers licence on special hardship grounds following the loss of his licence due to traffic infringements. The Applicant said that when he queried this matter with the Respondent he was told that the affidavit had been mailed to him. The Applicant maintained that he did not receive it and was unable to travel to work due to the loss of his licence.

[7] The Respondent submitted that the Applicant was not dismissed, but resigned his employment on 7 September 2012 as a result of the suspension of his driver’s licence and resulting inability to attend geographically diverse job sites. In a written statement, Mr Adam Dougan, Human Resources Manager, said that on or around 24 August 2012, he received a request from the Applicant for the provision of a Statutory Declaration stating that it would be unlikely that the Applicant’s employment could be sustained if his driver’s licence was suspended.

[8] Mr Dougan said that he agreed to provide the Statutory Declaration and did so on the same day. On or about 5 September 2012 Mr Dougan received a further request from the Applicant for the provision of an Affidavit, as he believed the Statutory Declaration was not sufficient. Mr Dougan agreed to provide the Affidavit and sent it by priority paid envelope. Copies of the Statutory Declaration, the Affidavit and consignment details for the priority paid envelope were appended to Mr Dougan’s witness statement. Mr Dougan said that on 11 September 2012 he received a telephone call from the Applicant complaining that he had not received the Affidavit, and had lost his driver’s licence. When Mr Dougan explained that he had mailed the Affidavit and provided the Applicant with the consignment details, the Applicant said that he intended to sue Australia Post for the loss of his job.

[9] On 19 October 2012 the Respondent received a text message from the Applicant stating that:

“I dropped my equipment off at your Gold Coast Office for a deposit refund which I believe I am entitled to. Bob wanted me to fill out some form but I have so much trouble from that quarter I am not mentally up to keeping company with these people for even that long. If I don’t receive my deposit back I will be laying a written complaint with the Fair Work Ombudsman.”

[10] Mr Dougan confirmed that Mr Magann received his final payment and PPE deposit on the next available pay run which occurred on 25 October 2012. Mr Dougan also contended that the Respondent was not responsible for the loss of the Applicant’s driver’s licence. Mr Dougan did not give evidence about the basis upon which it is said that the Applicant resigned his employment on 7 September 2012.

Consideration

[11] The evidence about the date on which the Applicant’s employment ceased is unclear. The witness statement provided by Mr Dougan recounts various discussions with the Applicant on 24 August, 5 September and 11 September 2012 about assistance the Applicant was seeking to retain his driver’s licence on the grounds of hardship. There is no evidence about any discussion with the Applicant on 7 September 2012, or the basis upon which Mr Dougan asserted that the Applicant resigned his employment on that date.

[12] I do not accept the Applicant’s submission that his employment ceased on 11 October 2012. The Applicant stated in his application for an unfair dismissal remedy that he was dismissed on 5 September 2012 and he made the application on 1 October 2012. It is improbable that the Applicant made his application for an unfair dismissal remedy before the dismissal.

[13] Doing the best that I can on the evidence before me, I am satisfied that the Applicant’s employment ceased on 11 September 2012. Accordingly, he was required to file his application for an unfair dismissal remedy by 25 September 2012. The application was filed on 1 October 2012, 6 days outside the time limit in s.394(2) of the Act. It is therefore necessary to consider whether the discretion to extend time in accordance with s.394(3) of the Act should be exercised.

[14] In relation to the factors in s.394(3), the explanation provided by the Applicant for the delay in making his application was that he was ignorant of the time period in which the application was required to be made and thought it should be 12 months. The Applicant stated in his application for an unfair dismissal remedy that he was dismissed on 5 September 2012. There is also evidence that he told Mr Dougan on 11 September 2012 that he had lost his job because of Australia Post.

[15] Assuming that the Applicant’s employment ceased on 11 September 2012, he was aware by that date that this was the case, and there is no evidence that lack of awareness about the date his dismissal took effect had any impact on the delay in making his application for an unfair dismissal remedy.

[16] There is no evidence that the Applicant took any action to dispute his dismissal, and the evidence in relation to the text message he sent to Mr Dougan about the refund of his uniform deposit suggests that he accepted that his employment had ended and that he would not dispute this if he was refunded the deposit. Further, this communication occurred after the Applicant had filed his application for an unfair dismissal remedy.

[17] There is no evidence of prejudice to the Respondent if an extension of time is granted, other than that the Respondent will be required to defend the application.

[18] I would not go so far as to find that the application is without merit. The assertion that the Applicant resigned his employment is not supported by any evidence of when and the circumstances in which this occurred. However, the fact that the Applicant had lost his driver’s licence and was unable to travel to work, and the assistance that the Respondent provided to him to obtain a restricted drivers licence, indicate that the Applicant may have some difficulty establishing that his employment was terminated on the employer’s initiative.

[19] In relation to fairness as between the Applicant and other employees in a similar position, it is well established that ignorance of the time limit in s.396(2) is not of itself, a sufficient basis upon which the discretion to extend time should be exercised. It would be unfair to applicants whose applications have been dismissed, to extend time on the basis of the evidence in this case, and in the face of the Applicant’s failure, without reasonable cause, to attend a hearing for the purpose of considering whether such an extension should be granted.

Conclusion

[20] In my view, this is not a case where the discretion to extend time is triggered. There are no exceptional circumstances taking into account the factors in s.394(3). Accordingly, the Application is dismissed and an Order to that effect will issue with this Decision.

COMMISSIONER

Appearances:

Mr G. Dougan on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

January 18.

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