Mr Barry Densley v Maru Koala and Fauna Park Pty Ltd T/A Maru Koala and Animal Park

[2013] FWC 1201

[2013] FWC 1201

FAIR WORK COMMISSION

DECISION

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

Mr Barry Densley
v
Maru Koala and Fauna Park Pty Ltd T/A Maru Koala and Animal Park
(C2013/2542 & U2013/6624)

COMMISSIONER ROE MELBOURNE, 21 FEBRUARY 2013

Unfair dismissal - discontinuance of s. 365 general protection claim - extension of time for s.394 lodging unfair dismissal application.

[1] A conference was held on 18 February 2013 in respect to a general protections claim involving dismissal (C2013/2542). That application had been brought under s. 365 of the Fair Work Act 2009 (the Act) by Barry Densley (the Applicant) in respect to his termination on 24 December 2012 or 26 December 2012 by Maru Koala and Fauna Park Pty Ltd T/A Maru Koala and Animal Park (the Respondent). The Respondent was represented by Mr Heffer and the Applicant represented himself.

[2] It is not in dispute that the Applicant was dismissed from his position as a chef for serious misconduct without payment of notice at the initiative of the employer on either 24 December 2012 or 26 December 2012. It is also not in dispute that the Applicant commenced full time employment with the Respondent on 6 February 2012. The Applicant submitted his s.365 application to FWC on 2 January 2013. The Application form contained few details but was technically complete. It is also not in dispute that there was no written letter of termination.

[3] In his s.365 application the Applicant said that he understood the reason for his termination was a “dispute over pay, conditions and pay slips.” It emerged in the conference that the Respondent says that he dismissed the Applicant because of his conduct on 24 December 2012 which involved swearing and raised voices. The Applicant says that the cause of this conduct was that without warning he was advised that he would not be paid on 24 December 2012 as scheduled but that his pay would be some days late. The Applicant says that this was exacerbated by a requirement to work late washing dishes which he did not regard as his normal job.

[4] During the conference the parties agreed that in fact the Applicant was seeking a remedy for alleged unfair termination. After considering all of the circumstances I agreed that it was appropriate pursuant to s.586 to allow the application to be amended and to waive any irregularity in the manner in which the application had been made so that the application becomes an unfair dismissal application under s.394 of the Act. That application is U2013/6624.

[5] Section 586 provides as follows:

“586 Correcting and amending applications and documents etc.

FWA may:

(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to FWA.”

[6] I consider that the application which I have amended was in fact made on 2 January 2013 which is within the 14 day time limit.

[7] I made my decision to amend the application to be an application under Section 394 of the Act at a conference convened under Section 368 of the Act. I am reinforced in this approach by the note which reflects Parliament’s intention to Section 368 of the Act.

“368 Conferences

(1) If an application is made under section 365, FWA must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that FWA might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Despite subsection 592(3), FWA must conduct the conference in private.”

[8] I note that a similar approach was adopted by Deputy President Hamilton in a Section 773 matter. 1

[9] However, in the event that I am wrong about this and the amended application is made on the date I exercised the discretion to amend the application on 18 February 2013 then it would be necessary to consider whether an extension of time can be granted within which to file an application for an unfair dismissal remedy. The application for an extension of time was not opposed by the Respondent.

[10] I am satisfied that the dismissal took effect on either 24 or 26 December 2012 and the original s.365 application was made on 2 January 2013 which is less than 14 days after the dismissal took effect. The period from 2 January 2013 until the date of the conference on 18 February 2013 was entirely taken by the processes of the Fair Work Commission in providing the Respondent with the opportunity to respond and scheduling a suitable time and date for a conference. This period of delay was not the responsibility of either party. 18 February 2013 is 55 days after 24 December 2012 and 53 days after 26 December 2012.

[11] Section 394(2) of the Fair Work Act 2009 (the Act) provided at the time of the dismissal as follows (note that 21 days applies to dismissals after 1 January 2013):

“(2) [Standard time limit] The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[12] Subsection 394(3) provides:

“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[13] In respect to Section 394(3)(a) I am satisfied that the reasons for delay are that the Applicant made a s.365 application rather than the more appropriate s.394 application and that the delay in rectifying this error was due to the processes of the Fair Work Commission in scheduling the conference under s.365. I am satisfied that in the particular circumstances of this case, this does constitute an exceptional circumstance justifying an extension of time. I consider that this is particularly the case because the original s.365 application had been made within the time limit required for a s.394 application.

[14] In respect to Section 394(3)(b) the Applicant says that he first became aware that his employment was terminated when he arrived for work on 26 December 2012 and attended a meeting with the Respondent at which it was made clear that he was not to return to work and was required to leave the premises immediately. The Respondent says that the Applicant was dismissed on 24 December 2012 when following an argument he was directed to go home. The Applicant says that he was not aware that he was being dismissed at that time. It is not necessary to determine this question. I am satisfied that the Applicant was certainly aware that he was terminated on 26 December 2012.

[15] I am satisfied that in respect to Section 394(3)(c) the Applicant contested his termination at the earliest practical opportunity by lodging a general protections application under s.365 of the Act.

[16] I am satisfied in respect to Section 394(3)(d) that there is no prejudice to the employer given that the employer does not oppose the extension of time being granted and given that the employer was aware of the challenge to the termination within 14 days of the termination. Furthermore the length of the delay is relatively short. The relevant information would still be available.

[17] I am satisfied in respect to Section 394(3)(e) that the allegations of misconduct alleged by the Respondent if proved could provide a valid reason for termination. However, I doubt that the alleged misconduct as stated by the employer would provide a valid reason for termination without notice or prior warning. There is no suggestion that there was any threat of violence or damage to property. It is possible that prior warning was given as I am not privy to all of the evidence. I am in a position to say that the Application for unfair dismissal remedy is arguable. The merits of the case as they have been stated by the parties as this stage favour the granting of an extension of time.

[18] There is nothing which suggests that Section 394(3)(f) is relevant in the circumstances of this case.

[19] Taking all those matters into consideration which are specified in section 394(3) of the Act, I find that there are exceptional circumstances which justify me granting the extension of time for the application.

[20] The Section 394 Application for unfair dismissal remedy will now be considered.

[21] The Respondent has properly raised a jurisdictional objection that it is a small business employing approximately 14 employees, including the Applicant, at the time of the dismissal. The Applicant vigorously contests this and argues that the Respondent employed more than 14 employees at the time of the termination. The parties agree, and I am satisfied that, if the Respondent is found to have employed 14 or less employees at the time of the termination, including associated entities and including the Applicant, then the Application for unfair dismissal must be dismissed. The parties agree and I am satisfied that if the Respondent is found to have employed more than 14 employees at the time of the termination, including associated entities and including the Applicant, then the merits of the Application for unfair dismissal can proceed to be determined. A jurisdictional hearing to determine whether or not the Respondent is a small business will now be scheduled.

COMMISSIONER

 1   (2011 FWA 5936 at paragraphs 11-18)

Printed by authority of the Commonwealth Government Printer

<Price code A, PR534309>