Mr Ben Pattison v Australian Growth Solutions Pty Ltd

[2013] FWC 2154

[2013] FWC 2154

FAIR WORK COMMISSION

DECISION

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

Mr Ben Pattison
v
Australian Growth Solutions Pty Ltd
(U2012/17112)

COMMISSIONER STEEL ADELAIDE, 9 APRIL 2013

Termination of Employment - Extension of Time.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The applicant was summarily dismissed on 4 December 2012. His application was lodged on 24 December 2012. He therefore is seeking a further period be allowed in accordance with ss.394(2)(b) and 394(3) of the Fair Work Act 2009 (the Act) as it was prior to 1 January 2013.

[2] Those provisions are as follows:

“394 Application for unfair dismissal remedy

...

(2) 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).

(3) 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.”

[3] In the process of arranging a determination on this matter it became apparent that the named respondent employer had, subsequent to the applicant’s dismissal, made the balance of their employees redundant. The respondent was therefore apparently a “shell company” with one director and was apparently not engaged in any activities.

[4] In this scenario, Mr Dean Pavitt, Corporate Lawyer for the Asian Pacific Group, an associated entity of the respondent, confirmed the above information to the Commission and was allowed by the Commission to appear in the proceedings out of practical necessity of having a respondent appearance in a matter of jurisdictional competence.

[5] The applicant was advised on 4 December 2012 by his team leader that he was dismissed effective immediately, with notice paid in lieu. He thereafter made contact with his Director, Mr Deague and sought a reconsideration. He subsequently received an email from his team leader confirming his termination. The applicant asserts he was encouraged to think that his dismissal would be further considered. He preoccupied himself with seeking other work but experienced some difficulty because of the proximity to Christmas. Mr Deague subsequently did not contact him.

[6] The applicant received an Employment Separation Certificate from his former employer on 11 December 2012 and he asserts that is the date from which his time limit for this application should commence, despite providing details of dismissal within his Form F2 which are to the contrary.

[7] The applicant wrote to Fair Work Australia (as the tribunal then was) on 14 December 2012 seeking that the fee for his unfair dismissal application be waived. He denies being advised of a specific time limit, however the details of a fee waiver application were accessed on the Fair Work Australia website prior to that date. The applicant further denies he received specific advice from his sister who is a lawyer other than she thought a time limit of twenty-one days applied to such applications.

[8] The respondent objects to an extension of time being granted as they assert there at no exceptional circumstances that have applied to the applicant’s situation. They directed the Commission’s considerations to various informative cases as to the meaning of “exceptional circumstances”. The Commission accepts that such references in regard to the matter of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 1 and Parker v Department of Human Services2 are informative to the commission as to the consideration of exceptional circumstances in this matter.

[9] I now turn to a consideration of the particular factors specified in s.394(3) of the Act.

S.394(3)(a) - The reason for the delay

[10] The applicant asserts he was not aware of the legal time limit as to his right of application. He asserts he thought the respondent was reconsidering his termination and he did not take legal or experienced advice on his situation. He does admit his sister told him of a twenty-one day limit applying to such applications and he states he was involved with seeking other work and his financial situation.

[11] In considering his application he transacted with Fair Work Australia on 14 December 2012 as to a waiver of a fee and he was therefore aware of the documentation to be provided to the tribunal.

[12] The applicant therefore had the capacity and engagement to determine the requirements of his application and the opportunity to seek legal advice or representation in regard to his application. The Commission is satisfied he had the opportunity to make a bona fide application in these circumstances.

S.394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect.

[13] The applicant became aware of his termination on 4 December 2012 and discussed it with two of the respondent’s officers. He asserts he thought his termination was being seriously reconsidered, yet he received confirmation later that day from one of the officers and thereafter did not receive any further advice from either party. He received a separation certificate on 11 December 2012, again confirming his dismissal date.

S.394(3)(c) - Any action taken by the person to dispute the dismissal.

[14] The applicant had the above conversations on 4 December 2012 and received his certificate on 11 December 2012. He does not evidence any further conversations with the respondent. The Commission is satisfied he took no further action to dispute his dismissal other than to file an unfair dismissal application.

S.394(3)(d) - Prejudice to the employer (including prejudice caused by the delay).

[15] The respondent considers this a neutral issue and the commission finds no prejudice to the employer other than the usual prejudice that accompanies an application for an extension.

S.394(3)(e) - The merits of the application.

[16] The facts of the applicant’s employment and dismissal are disputed in the sense he asserts no performance issues, whereas the respondent relies upon performance and other matters. The merits of the application are therefore disputed and the applicant may have a case if his version of events were sustained by the facts.

S.394(3)(f) - Fairness as between the person and other persons in a similar position.

[17] The respondent asserts that to excuse the applicant and allow such an extension would be unfair to other parties who must conform to the timeframe.

Consideration

[18] In taking into account the statutory requirements in regard to this form of application, the Commission considers that the circumstances of this case are not “exceptional circumstances” required for a grant of discretion in respect to an extension of time for filing of the application. Accordingly the application for an extension of time must fail and the applicant’s claim against the respondent is dismissed. An order to that end will be issued.

COMMISSIONER

Appearances:

Mr B Pattison in person

Mr D Pavitt for the respondent

Hearing details:

2013:

Adelaide

26 March

 1   [2010] FWA 1394

 2   [2009] FWA 1638

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