Mr Barry O'Brien v Schawk Australia Pty Ltd T/A Schawk Australia

[2013] FWC 1701

[2013] FWC 1701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Barry O'Brien
v
Schawk Australia Pty Ltd T/A Schawk Australia
(C2013/3385)

COMMISSIONER ROE MELBOURNE, 22 MARCH 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] On 28 February 2013 the Applicant, Mr Barry O’Brien, made an application under S.365 of the Fair Work Act 2009 (the Act) alleging contravention involving dismissal by the Respondent, Schawk Australia Pty Ltd T/A Schawk Australia. It is not in dispute that the applicant was dismissed due to redundancy on 18 October 2011. The application was therefore made approximately 16 months after the dismissal took effect, which is very significantly out of time. This decision deals with the jurisdictional objection raised by the Respondent concerning extension of time.

[2] It is clear that the applicant did contest the termination by making an application to Fair Work Australia in October 2011, which he later withdrew because he didn't believe that he had sufficient grounds or information to contest the genuineness of the redundancy.

[3] It is also clear that in June 2012 the employer advised employees that they were going to appoint a business development manager and that the position was subsequently filled in 2012. Mr Nally, on behalf of the employer, says that the redundancy in October 2011 was for business reasons and that the work that had been performed by Mr O'Brien was performed by others within the business during the period from October 2011 until August 2012.

[4] The Applicant couldn’t point to any basis to suggest that the employer’s submission that nobody new was doing that work during the period was wrong. I can't see any reason why I should doubt that the business requirements could change and did change between the period of October 2011 and June 2012. Based on those conclusions about the factual situation, the criteria in section 366 of the Act requires me to be satisfied that there are exceptional circumstances to grant the extension of time. "Exceptional circumstances" means something beyond the ordinary.

[5] In regards to the first issue, reason for the delay, I accept that the reason for delay was that Mr O'Brien only became aware of the fact that the position had been readvertised and filled in February 2013. However, I don't regard that as an exceptional circumstance, given that it is reasonable to assume that the position was readvertised eight months after the applicant had been made redundant because of changed business requirements.

[6] In respect of the second matter, which is any action taken by the person to dispute the dismissal, I think it is clear that Mr O'Brien did take action to dispute the dismissal in October 2011 by making the application, but didn't take any action subsequent to that until February 2013, when he became aware that the position had been refilled.

[7] In respect of prejudice to the employer, including prejudice caused by the delay, I am satisfied that there would be significant prejudice to the employer if I was to grant the extension of time, given the long period between the termination of the applicant and the making of the application.

[8] In respect to the merits of the application, given that there is no evidence that a position was filled by any new employee during the period between when the applicant was made redundant in October 2011 and the advice that the position would be filled in June 2012, I think that the application is unlikely to have merit. However, I haven't heard all of the evidence with respect to the matter, and therefore I don't have a concluded view about that.

[9] In respect of the final matter, which is 366(2)(b), fairness as between the person and other persons in the like position, I'm not aware of anyone else who is in the same position as the applicant in this case.

[10] Taking all of the factors into consideration, I am satisfied that there are no exceptional circumstances which would justify the extension of time for such a long period.

[11] I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

Appearances:

Mr R Wilson appeared for the Applicant.

Mr M Nally appeared for the Respondent.

Hearing details:

2013

Melbourne

March 14

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