Mr David Allender v Sigma Precious Metals Pty Ltd
[2010] FWA 8795
•15 NOVEMBER 2010
[2010] FWA 8795 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Allender
v
Sigma Precious Metals Pty Ltd
(U2010/12291)
COMMISSIONER CLOGHAN | PERTH, 15 NOVEMBER 2010 |
Unfair dismissal remedy.
[1] On 10 September 2010, Fair Work Australia received an application from Mr David Allender (“the Applicant”) alleging that he was unfairly dismissed from his employment at Sigma Precious Metals Pty Ltd (“the Employer”).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the Act”).
[3] Mr Allender’s application was unable to be resolved at conciliation and subsequently referred to me for arbitration.
RELEVANT LEGISLATION
[4] The relevant provisions of the Act are as follows:
- Section 394 - Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.
- Section 396 - Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2); (my emphasis)
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
RELEVANT MATTERS FOR CONSIDERATION
[5] Section 396(a) of the Act requires that Fair Work Australia must decide, before considering the merits of Mr Allender’s application, whether the application was made within 14 days after the dismissal took effect in accordance with s.394(2)(a) of the Act.
[6] Mr Allender states, in his application, that he was notified of his dismissal on 2 August 2010 and it took effect from the same day. Consequently, it is clear that Mr Allender’s application was not made within 14 days of his dismissal taking effect.
[7] Notwithstanding the fact that Mr Allender did not make application within 14 days of his dismissal taking effect, s.394(2)(b) of the Act enables Fair Work Australia to exercise its discretion to allow a further period beyond 14 days if it is satisfied that there are exceptional circumstances.
[8] Upon being allocated the application for arbitration, I wrote to Mr Allender on 15 October 2010 inviting him to provide any further information on the matters outlined in s.394(3) of the Act, and any other matters he considered relevant to the delay in filing the application. I also forwarded a copy to the Employer for their information and any comment if they considered it appropriate.
[9] Mr Allender responded, by email, on 25 October 2010 to my invitation to make a submission as to why I should consider his late application.
[10] Mr Allender states in his application that the reason for his dismissal is that “the company was sold”. In response to why the dismissal was unfair, Mr Allender asserts in his application that he has “20% of the sale of the company as well as of the profits. I was not involved in the negotiations, I was terminated without any notice”.
[11] At a meeting of “management” on 2 August 2010, Mr Allender received various entitlements but was unable to pursue an alleged entitlements relating to “20% of the sale of the company”. Mr Allender again pursued this alleged entitlement on either 23 or 28 August 2010; the exact date is unknown as the application states 28 August but his submission of 25 October 2010, states 23 August 2010. I have chosen, for the remainder of this Decision, to use the date 28 August 2010.
[12] Mr Allender states in his submission of 25 October 2010 that:
- “I called Justin Evans on Monday, “23rd” August 2010 to arrange a meeting regarding my 20%, still under the impression, that the matter would be solved fair and amicably, just to be told that ‘there was no money to be made’ and my former boss hung up on me.”
- “That’s when I realised that I will have to take legal actions to get my rights.”
- “Unfortunately I lost time with finding out, where to go and what to do.”
- “I applied to the Industrial Relations Commission on 30th August 2010.”
- “In early September I was told by Industrial Relations Commission that part of my claim is federal, part is state and that I have to apply to Fair Work Australia regarding my redundancy payment.”
[13] The starting point for any application for alleging unfair dismissal is that it must be made within 14 days unless there are exceptional reasons. The policy position of Parliament is to fix a specific time in which something should be done rather than leaving such matters open-ended, or to use such timeframes as, “reasonable”.
[14] At the meeting on 2 August 2010 when pursuing alleged entitlements regarding the sale of the company, the Applicant was advised that the Company’s Accountant was on leave for two (2) weeks, however, resolution of this matter only occurred on 28 August 2010 -- 26 days later and with the same person who was present on 2 August 2010.
[15] On 28 August 2010, Mr Allender was, “told that there was no money” [regarding his 20% of the sale of the company] and the Employer “hung the phone up on me”.
[16] Subsequently on 30 August 2010, Mr Allender made application to the Western Australian Industrial Relations Commission (WAIRC) and, according to the Applicant, was advised by the WAIRC “that I have to apply to Fair Work Australia regarding my redundancy payment”.
[17] Mr Allender’s application to the WAIRC is pursuant to s.29(1)(b)(ii) of the Industrial Relations Act 1979 for an order in respect of his claim that he has not been provided by the Employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment. Mr Allender, in his application to the WAIRC, is seeking 20% of the sale proceeds of the Company which employed him pursuant to a letter dated 25 May 2004 from his Employer.
[18] With respect to the provisions of s.394(3) of the Act, the Applicant did not make application alleging unfair dismissal within 14 days, but chose to wait until the Employer’s accountant returned from leave. For whatever reasons, resolution of the matters did not occur until 26 days later. Whether waiting for an Accountant to return from leave is exceptional circumstances, is arguable within the context of s.394(3) of the Act. However, my finding is that the cause of the delay in filing the application relates to Mr Allender seeking to pursue, what he asserts to be a contractual entitlement, and not action relating to the unfairness of his dismissal of employment.
[19] From the material provided to the Fair Work Australia, it is established Mr Allender first became aware that his employment was ceasing on 29 July 2010 when, on attending work, he was informed that the Company had been sold and the premises “cleaned out”. On 30 July 2010, Mr Allender met with the representatives of the acquiring company and had discussions on employment with them -- which proved unsuccessful. On 2 August 2010, Mr Allender met with the Employer to discuss his entitlements on termination of employment which did not include 20% of the sale of the Company as he expected. In conclusion, Mr Allender was aware from 29 July 2010 that his employment was about to cease. On 2 August 2010, Mr Allender’s employment ceased. Mr Allender filed his application, out of time by 25 days, on 10 September 2010.
[20] In view of the preceding consideration of s.394(3)(a)-(c) of the Act, I consider it unnecessary to address s.394(3)(d)-(f) of the Act. I am satisfied that Mr Allender has certainly pursued what he asserts are his entitlements following the sale of his Employer’s business. However, the pursuit of those alleged entitlements, is not the same as pursuing and disputing an alleged unfair dismissal.
CONCLUSION
[21] The provisions of s.396(d) of the Act have not been met. Further, taking into account the matters in s.394(3)(a)-(f), I am not satisfied that there are exceptional circumstances to extend the 14 day period to 10 September 2010 to enable the merit of the application to be considered. An Order to dismiss the application for want of jurisdiction will issue to reflect this Decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR503915>
0
0
0