Mr Ashley Fuller v MBL Trading Ltd T/A MBL Food Services

[2014] FWC 6465

[2014] FWC 6465

FAIR WORK COMMISSION

DECISION

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

Mr Ashley Fuller
v
MBL Trading Ltd T/A MBL Food Services
(U2014/8066)

COMMISSIONER CLOGHAN PERTH, 16 SEPTEMBER 2014

Unfair dismissal - out of time.

[1] On 26 June 2014, Mr Ashley Craig Fuller (Mr Fuller or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, MBL Trading Ltd T/A MBL Food Services (Employer).

[2] Mr Fuller states in his application that his dismissal took effect on 3 June 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Fuller has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 26 June 2014), if it 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] On 4 July 2014, I issued Directions and advised the parties that I intended to deal with the issue of whether there were exceptional circumstances to allow the application to be filed on 26 June 2014 by way of written submissions.

[7] The Applicant provided the Commission with a Statement of Facts on 18 July 2014. The Employer provided a Statement of Facts on 4 August 2014. The Applicant had the opportunity to respond to the Employer’s Statement of Facts on 11 August 2014 but chose not to do so.

[8] In view of the detailed response by the Employer and the choice made by the Applicant not to respond to those details, I consider it appropriate in the circumstances that the Commission should draw an adverse inference from Mr Fuller’s silence.

[9] Having considered the criteria in s.394(3) of the FW Act, and in particular, paragraphs 394(3)(a) and (e), I am satisfied that there were no exceptional circumstances to allow the application to be made beyond the statutory timeline of 21 days. Accordingly, the application will be dismissed and an Order to this effect issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 18 July 2014.

Respondent: 4 August 2014.

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