Mr David Clark v Moscou Holdings Pty Ltd ATF the Penguin Trust T/A Penguin International

[2010] FWA 5385

[2010] FWA 5385

FAIR WORK AUSTRALIA

DECISION

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

Mr David Clark
v
Moscou Holdings Pty Ltd ATF The Penguin Trust T/A Penguin International
(U2010/9133)

COMMISSIONER CLOGHAN PERTH, 21 JULY 2010

Notice of election lodged out of time.

[1] On 26 May 2010, Mr David Clark (“the Applicant”) made application to Fair Work Australia pursuant to s.394 of the Fair Work Act 2009 (“the Act”).

[2] The Applicant sought a remedy in relation to alleged unfair dismissal from Penguin International (“the Employer”).

[3] Mr Clark alleged that he was unfairly dismissed on 22 March 2010.

[4] The application was unable to be resolved through conciliation and referred to me for arbitration.

[5] On receiving the matter for arbitration, the Conciliator advised that the Employer had raised the issue of the application being lodged out of time and objected to any extension of time to accept the application.

[6] On 28 June 2010, the application was the subject of a conciliation conference.

[7] At the conciliation conference I invited both parties to provide written submissions on the issue of whether the Tribunal should allow the Applicant to file the application on 26 May 2010 for the reasons set out in s.394(3) of the Act.

[8] The Employer’s submission succinctly stated is as follows:

• Mr Clark was dismissed and given notice on 22 March 2010;



• the Employer was first contacted by the Fair Work Ombudsman (FWO) on 10 May 2010 relating to payment of wages in lieu of notice;



• the Employer was advised on 25 May 2010 that Mr Clark’s claim was “closed” due to insufficient evidence; and



• Mr Clark filed an application for alleged unfair dismissal after being unsuccessful in relation to his claim for payment in lieu of notice with the FWO.

[9] The Applicant submits that:

• he was under the impression that if he made a complaint to the FWO, that was sufficient. Mr Clark’s complaint to the Fair Work Ombudsman was on the day of his termination of employment; and



• on being advised by the FWO that he needed to make a separate complaint to Fair Work Australia for alleged unfair dismissal, he did so on the following day (26 May 2010).

LEGISLATION

[10] The material provisions of the legislation 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.

DISCUSSION AND CONCLUSION

[11] The legislation is based on the principles set down by the Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300. They are as follows:

(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

(2) Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.

[12] The first principle states that the time limit should be complied with unless there is an acceptable explanation for the delay. The Applicant contends that he was “under the impression” that his complaint to the FWO was sufficient. However, the complaint to the FWO related only to payment in lieu of notice. I am not satisfied that the Applicant thought that such a complaint was sufficient to also include a complaint regarding unfair dismissal. The difference between the two actions are significant enough for me to take the view that at the time of his termination of employment, the Applicant’s intended course of action was to recover one week’s pay in lieu of notice only.

[13] Second, the Applicant was aware of the date of his dismissal and only sought to contest that action on the day after his complaint for pay in lieu of notice, was not sustained by the FWO.

[14] Third, the Applicant has advised me in his written submission:

“I then went to Mark’s office where he told me..he is giving me a week’s notice...”

“He also told me that if I can increase my performance in the last week that I could keep my job...”

“After I talked with mark I left with...I talked [with a work colleague] about my conversation with Mark My decision was to leave; I could then...Although my decision was to leave, I would only leave if Mark was willing to pay me out the week notice he has given me.”

and

“I returned to the warehouse at approximately 3.45pm in which I went to see Mark again to discuss the issue. I told Mark I’d rather be at home...and that if today could be my last day, and if he was willing to pay me out for the last week.”

[15] Having carefully considered the material presented to the Tribunal above, I am not satisfied that it would be fair and equitable to extend the time limit to accept the application. In addition to the procedural matters, the Applicant has set out aspects of events which indicate his intention to leave his employment, in contrast to his application seeking relief for unfair dismissal; these are matters which I must consider pursuant to s.394(3)(e).

[16] For the above reasons, I am satisfied that there are not exceptional reasons as set out in s.394(3) to allow further time for the application to be received, heard and determined. An Order to dismiss the application will now issue to reflect this Decision.

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