Mr Andrew Michael Bradley v Tyco Australia Group Pty Limited
[2022] FWC 912
•20 APRIL 2022
| [2022] FWC 912 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Michael Bradley
v
Tyco Australia Group Pty Limited
(U2022/2196)
| COMMISSIONER WILLIAMS | PERTH, 20 APRIL 2022 |
Application for an unfair dismissal remedy
Mr Andrew Bradley (Mr Bradley or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is Tyco Australia Group Pty Ltd (the Respondent).
Mr Bradley’s application says he advised of his resignation on 24 December 2021 and his last day of employment was 7 January 2022. His application asserts this was a constructive dismissal. His dismissal took effect on 7 January 2021.
Mr Bradley’s application was made on 20 February 2022
The application has been made more than 21 days after the asserted dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. 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.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Consequently on 2 March 2022 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided a written response by email on 6 March 2022.
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.
The Applicant’s reason for the delay
The Applicant explains the reason for the delay in making his application was that before making the application he did attempt on numerous occasions to have this matter dealt with without the involvement of the Commission however there had not been any responses forthcoming from the Respondent.
His application says that he first emailed the Respondent on 19 January 2022 detailing his concerns. A response was received on 20 January 2020 advising the issue would need to be escalated to HR for review and discussion.
He says no further communication was received, so he sent another email on 27 January 2022 requesting a response. He received a response advising that the HR representative was on leave and that the representative would contact him by 4 February 2022.
He says again no response was received. Mr Bradley says that he waited a fair and reasonable amount of time for a response to allow his previous employer to resolve the situation and in doing so delayed him being able to submit this matter to the commission within the required 21 days.
Mr Bradley attached the respective emails referred to above.
Mr Bradley says he believes the delaying tactics that have been implemented by the Respondent are an attempt to prevent him from being able to make his claim within the required 21 days.
In summary the reason this application was made more than 21 days after his dismissal took effect is that he decided to contact his employer, in the first instance 12 days after his dismissal took effect, in an attempt to resolve the issues by raising his concerns directly with the Respondent. However the only responses received were administrative in nature advising he would be contacted later by HR, which did not occur.
Mr Bradley’s attempts to resolve the issues directly with the Respondent were entirely appropriate but it did not prevent him from also making this application on time. The absence of a meaningful response from the Respondent did not in any way prevent him making this application within the 21 day statutory time limit.
For his own reasons Mr Bradley chose not to make this application whilst attempting to engage with the Respondent about his concerns directly. However these two alternative approaches to resolving his concerns were not mutually exclusive.
It was Mr Bradley’s choice not to make this application earlier than he did.
In this case the reason for the delay is not an acceptable reason for making a late application. The reason for the delay also does not involve any exceptional circumstance.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant was aware of his asserted dismissal on the day it took effect.
Action taken to dispute dismissal
The Applicant did not take any other action to dispute his asserted dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the Respondent.
The merits of the application
Mr Bradley explains in his application that his resignation was forced and should have been treated and paid as a redundancy.
He says the position he was employed to do as a platinum service technician was no longer available.
He says on 24 December 2021 he was verbally advised on the phone conversation that the department he was working for was no longer operating along with the clients he was employed to service.
He says at this time he advised, in an attempt to remain employed, that he would be open to being retrained in the position of Residential Service Technician however he was told that the training was not approved by management meaning that he did not have the necessary skills to carry out the requirements of a Residential Service Technician.
He says in summary his position was no longer available and training was not approved for him to be redeployed which resulted in his position being redundant and he should have been treated and paid as such.
When determining only the question of whether an extension of time will be allowed for an application to made the Commission does not undertake a full hearing of the merits of the matter. Consequently the merits are a neutral factor for the Commission’s current considerations.
Fairness as between the person and other persons in a similar position
There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.
Consequently the Commission is not empowered to extend time for the Applicant to make this application.
This application has been made out of time and so must now be dismissed. An order to that effect will now be issued.
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