Mr Anthony Power v Future Employment Opportunities Inc T/A Feo
[2015] FWC 7533
•30 OCTOBER 2015
| [2015] FWC 7533 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Power
v
Future Employment Opportunities Inc T/A FEO
(U2015/12836)
COMMISSIONER ROE | MELBOURNE, 30 OCTOBER 2015 |
Application for relief from unfair dismissal - extension of time.
[1] Mr Power lodged his unfair dismissal application 29 weeks after the termination of his employment. The application was approximately six months late. He is seeking an extension of time. Future Employment Opportunities Inc (FEO) oppose the granting of an extension of time.
[2] The parties agreed that the following facts are not in contention:
● Mr Power was dismissed on the 26th or 27th of February 2015 for alleged serious misconduct arising from an altercation between Mr Power and another employee on 26 February 2015.
● The incident was the subject of a meeting with management on 26 February 2015. There was then a telephone conversation on 27 February 2015. The termination of employment was confirmed in a letter dated 3 March 2015.
● There was a further informal meeting with the employer on or about 3 April 2015 at which the employer confirmed that they would not reinstate Mr Power and told him that it was now more than 21 days after the dismissal and it was too late to “appeal”.
● Mr Power made his unfair dismissal application on 14 September 2015.
● Mr Power went to a number of institutes for help including Worksafe, the Fair Work Commission, Jobs Australia and solicitors including the Institute of Law. Mr Power says that they were “very vague and unhelpful. Replies took time usually with no result.” None of these bodies was engaged to represent Mr Power.
[3] The facts concerning the altercations between Mr Power and the other employee are hotly contested. The merits of Mr Power’s unfair dismissal case are dependent upon establishing the facts of that incident. It is not appropriate to examine these facts at this preliminary stage. The case is not without merit but it is not obviously strong and therefore the merits of the case are a neutral factor in the circumstances of this case.
[4] The matter was heard on 27 October 2015. That hearing focused on Mr Power’s evidence of the reasons for the delay in lodging the application.
[5] I am required to determine the matter using the criteria in Section 394(3) of the Fair Work Act 2009:
“(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.”
[6] Mr Power says that the period of delay can be considered in two parts. Firstly, the period between 27 February 2015 and 3 April 2015; and secondly, the period between 3 April 2015 and 14 September 2015.
[7] In respect to the first period Mr Power contacted the employer three days after the dismissal to discuss the matter but he says that the employer then took 22 days to get back to him by which time the 21 day time limit had expired. I am not satisfied that this is a reason for delay which contributes to a finding of exceptional circumstances. The employer is not obliged to discuss the dismissal with the employee. The employer made no commitment to discuss the matter with the employee. The fact that the employer did not respond did not in any way prevent Mr Power from making an unfair dismissal application.
[8] In respect to the second period Mr Power says that he went to a number of institutes for help including Worksafe, the Fair Work Commission, Jobs Australia and solicitors including the Institute of Law. Mr Power says that they were “very vague and unhelpful. Replies took time usually with no result.” None of these bodies was engaged to represent Mr Power. Mr Power also says that he made three or four further attempts to discuss the dismissal directly with the employer. As none of these bodies were representing Mr Power they could not have engaged in any representative error. There is no suggestion that any of these bodies advised Mr Power not to put in an application for unfair dismissal. I am not satisfied that the alleged difficulties Mr Power had in obtaining representation or advice is a reason for delay which contributes to the finding of exceptional circumstances. This is particularly the case when the period of delay is approximately six months.
[9] There is no satisfactory explanation for the delay. The reasons for delay do not contribute to a finding of exceptional circumstances (Section 394(2)(a)).
[10] Mr Power was probably aware of the dismissal on 27 February 2015. The dismissal was confirmed in writing on 3 March 2015. I am satisfied that Mr Power first become aware of the dismissal at the time it took effect or within a few days of that event (Section 394(3)(b)).
[11] Mr Power did take some actions to dispute the dismissal in the period leading up to 3 April 2015. He objected to the dismissal by raising his concern with the employer three days after the dismissal. He took no action then until 3 April 2015 when an informal discussion took place with the employer. I am not satisfied that Mr Power took vigorous actions to dispute the dismissal in the 21 days after it took effect. However, he did take some action (Section 394(3)(c)).
[12] The employer says that they would be prejudiced as the General Manager at the time the incident took place is no longer employed by FEO. Given the very long period of time since the dismissal I agree that the employer would be prejudiced in its capacity to defend the allegations (Section 394(3)(d)).
[13] The merits are a neutral consideration for the reasons outlined earlier (Section 394(3)(e)).
[14] I am not satisfied that there is any issue of fairness as between Mr Power and other persons in a similar position (Section 394(3)(f)).
[15] Taking all of the factors specified in Section 394(3) of the Fair Work Act 2009 into consideration I am not satisfied that there are exceptional circumstances which warrant the granting of an extension of time in this case. The application is dismissed.
COMMISSIONER
Appearances:
Mr A Power represented himself.
Ms D Clarke and Ms S Parker appeared for the Respondent.
Hearing details:
2015
Melbourne and Bendigo (by telephone)
October 27
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