Mr Darryl Hancock v Patrick Stevedores

[2014] FWC 2297

[2014] FWC 2297

FAIR WORK COMMISSION

DECISION

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

Mr Darryl Hancock
v
Patrick Stevedores
(U2013/17173)

COMMISSIONER ROE MELBOURNE, 7 APRIL 2014

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Mr Darryl Hancock (the Applicant) in respect of dismissal by Patrick Stevedores Holdings Pty Ltd T/A Patrick Ports and General Stevedoring (the Respondent).

[2] The Applicant filed his application on 10 December 2013. The Applicant in his Application form says that he was employed from 10 June 2010 and was notified of his dismissal and that his dismissal took effect on 27 November 2012. The Applicant received a separation certificate on 27 November 2012. That separation certificate states that the employment in fact finished on 20 June 2012.

[3] The Respondent submits that the Applicant was told in June 2012 that he would no longer be provided with any work and that he was removed from the roster/pick up system from 20 June 2012 and has not worked since. The Respondent says that the separation certificate was provided at the request of the union representative apparently acting on behalf of the Applicant.

[4] The Applicant was advised of the Respondent’s objection to the extension of time on 16 January 2014. The matter was listed for conciliation on 6 February 2014 but did not settle at conciliation conference. The hearing of the extension of time matter was listed for 4 April 2014 by notice sent on 20 February 2014. The Applicant was directed to provide submissions in support of his Application by 7 March 2014. The Fair Work Commission registry telephoned the Applicant on a number of occasions and reminded him of the requirement to make submissions. No submissions were received from the Applicant. The Applicant failed to attend the hearing on 4 April 2014. My Associate telephoned the Applicant and left a voice message. The Applicant failed to respond to that message.

[5] I am satisfied that even if one was to accept that the Applicant became aware of the termination on 27 November 2012 the Application is more than 15 months late and no reasons for the late Application have been provided. Given that the Applicant participated in the conciliation conference which was advised utilising the same contact details as have been used to advise the Applicant of the hearing of the jurisdictional objection and to remind the Applicant of the need to provide submissions, I am satisfied that the Applicant has had reasonable opportunity to prosecute his case.

[6] The submissions of the Respondent are that the Applicant was in fact dismissed on 20 June 2012. There is some indirect support for this submission in the material contained in the Application.

[7] In the particular circumstances of this case I am satisfied that it is appropriate to deal with the matter in the absence of the Applicant. The relevant section of the legislation is as follows.

[8] Section 394(2) of the Fair Work Act 2009 (the Act) provides:

“(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).”

[9] 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.”

[10] No reason has been provided for the delay and the delay is very significant (Section 394(2)(a)). This remains the case even if I accept the statement of the Applicant that he only became aware of the dismissal in November 2012 (Section 394(3)(b)). There is nothing in the material provided by the Applicant that suggests he took any action to contest the dismissal. There is significant prejudice to the Respondent given the very significant delay. I make no finding about the merits of the application; this is a neutral factor in the circumstances of this case. Section 394(3)(f) is not relevant in this case.

[11] Based upon the material before me there is no basis for finding that there are exceptional circumstances warranting an extension of time.

[12] The onus is on the Applicant to establish that there are exceptional circumstances. The Applicant has been provided with reasonable opportunity to establish exceptional circumstances and has failed to do so. I am satisfied that the Applicant was given adequate notice that the matter was listed for hearing on 4 April 2014 and that the matter would be determined at that hearing. If the Applicant was suffering from some incapacity or serious inconvenience there was adequate opportunity for the Applicant to advise the Fair Work Commission of this and to seek an adjournment. If it was simply a matter that the Applicant had failed to attend the hearing then I would have considered it appropriate to provide the Applicant with an opportunity to respond to the Application of the employer that the matter be dismissed pursuant to Section 399A. However, in this case the Applicant:

● attended the conciliation conference relatively recently which confirms the accuracy and effectiveness of the contact details;
● a number of messages were left with the Applicant;
● the Applicant failed to comply with directions to provide a submission about the reasons for the delay justifying extension of time;
● the Application is on the Applicant’s own information more than 15 months late; and
● the material provided by the Respondent is that the Applicant took no action to contest the termination during the period prior to making the Application and there is nothing in the material provided by the Applicant to the contrary.

[13] In the circumstances of this case I can see no denial of natural justice in proceeding to determine the matter.

[14] I am not satisfied that there are exceptional circumstances warranting an extension of time. The Application is dismissed.

COMMISSIONER

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