Mr Darcy Walker v Dome KRB Pty Ltd

[2013] FWC 9216

[2013] FWC 9216

FAIR WORK COMMISSION

DECISION

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

Mr Darcy Walker
v
DOME KRB Pty Ltd
(U2013/10596)

DEPUTY PRESIDENT ASBURY BRISBANE, 21 NOVEMBER 2013

Application for unfair dismissal remedy - Jurisdiction - Extension of time - National system employer.

[1] The following Decision, now edited, was issued during proceedings on 5 November 2013.

[2] I can indicate that having heard from both parties I am not satisfied that Dome KRB Pty Ltd was the employer of Mr Walker. It is clear that Mr Walker was employed by Dome KRB Ltd, a company registered and operating in Papua New Guinea. I am of the view that Mr Walker was employed at all times by Dome KRB Ltd, and on the evidence that is before me I am not satisfied that Dome KRB Ltd is a national system employer and is caught by the Fair Work Act.

[3] In any event, the application is not made against Dome KRB Ltd, it is made against Dome KRB Pty Ltd. The fact that they are related entities is not sufficient. What is required is for Mr Walker to establish on the balance of probabilities that he was employed by a national system employer, and secondly that he was employed by the entity against which he has brought the application - which is Dome KRB Pty Ltd. I am not satisfied that Mr Walker was employed by Dome KRB Pty Ltd.

[4] I am also not satisfied that this is a case where I should exercise the discretion to extend the time required to make an application. The legislation, as it deals with extension of time, requires that I be satisfied that there are exceptional circumstances. The difficulty here is that Mr Walker was dismissed on the basis of the material in his own application, on 15 May 2013. I do not accept that the second letter changed the date of the termination by virtue of the fact that it might have given some different reasons for the dismissal. I am satisfied that Mr Walker was dismissed on 15 May 2013. The application was made on 18 June 2013, 10 days outside the time required under the Fair Work Act.

[5] I am also not satisfied that there were exceptional circumstances. I accept that Mr Walker may have been suffering from some symptoms of depression which was later diagnosed, on 27 May 2013. But I am also of the view that he managed to write a very extensive letter or facilitate the writing of a very extensive letter to his former employer protesting about the termination of his employment. He followed that up with another letter on 2 June 2013 and was not able to file his unfair dismissal application until 18 June 2013.

[6] It is apparent that within the time that Mr Walker says he was suffering from depression and unable to make the application, he was able to write two quite extensive letters or cause them to be written to his former employer and I do not accept that on that basis that he was prevented from making an unfair dismissal application within the time that was required.

[7] I am also required to take into account the merits of the application and, given my views about the fact that Mr Walker was not employed Dome KRB Pty Ltd, and that the alternative proposition that he was employed Dome KRB Ltd, is not sufficient to establish that he was employed by a national system employer, the merits of the case are not such that the discretion to extend time should be exercised.

[8] Accordingly, I dismiss Mr Walker’s application for an unfair dismissal remedy, with respect to the alleged termination of his employment by Dome KRB Pty Ltd. An order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr D. Walker on his own behalf.

Mr G. Cooper on behalf of DOME KRB Ltd.

Hearing details:

2013.

Brisbane:

November 5.

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