Mr David Harrison v Three Ocean Maritime Pty Ltd

[2014] FWC 5290

[2014] FWC 5290

FAIR WORK COMMISSION

DECISION

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

Mr David Harrison
v
Three Ocean Maritime Pty Ltd
(U2014/9811)

COMMISSIONER CLOGHAN PERTH, 5 AUGUST 2014

Unfair dismissal.

[1] On 6 June 2014, Mr David Harrison (Mr Harrison or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Three Ocean Maritime (Employer).

[2] Mr Harrison alleges that his last day of work was 30 April 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Harrison has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 6 June 2014), if it 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.

[6] On 17 June 2014, I advised the parties that I would deal with the jurisdictional issue of Mr Harrison not filing the application within 21 days by way of written submissions.

[7] This is my decision and reasons for decision.

[8] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

RELEVANT BACKGROUND

[9] The Employer provided the following Statement of Facts in which the Applicant did not contest as he was able to do so in the Directions:

“1. The Applicant undertook work for the Respondent from 23 October 2009 on a casual ad-hoc basis that involved cleaning of ship holds. The hours worked by the applicant were dependent upon shipping, the Company gaining the work and the applicant’s availability. The applicant had the right to refuse the offer of work.

2. On 1 May 2014 the attached letter was posted to the applicant.

3. On 2 May 2014, the Operations Manager telephoned the applicant on two occasions to offer him work. The applicant did not return the phone calls.

4. On 3 May 2014, Robert Camarda, Managing Director telephoned the applicant on three occasions to offer him work on 4 May 2014. The applicant did not return the telephone calls.

5. No further casual work was available or offered to the applicant prior to receiving the attached email from him dated 13 May 2014.

6. On 17 May 2014 the applicant requested by email a Separation Certificate.

7. The attached separation Certificate dated 19 May 2014 was posted to the applicant on or about 21 May 2014.

8. The applicant’s last day of work was 30 April 2014.”

[10] The relevant parts of the attached letter referred to in paragraph [10] are as follows:

“I [Mr Camarda] am aware that you [Mr Harrison] were involved in an altercation with another casual employee (outside of work) and that charges have been laid in relation to that incident. As it is not presently possible for you both to work on the same job and not wanting to take sides in a matter that was not related in any way to the business, I took the step to offer work to each of you in turn.”

APPLICANT’S CASE

[11] The Applicant submits that:

• the Employer advised on 1 May 2014, by correspondence, that his employment was ongoing;



• he was informed on 17 May 2014 by “other employees” that he was not going to obtain further work;



• he emailed the Employer on 17 May 2014 seeking a Centrelink Separation Certificate;



• he emailed the Employer on 23 May 2014. The response from the Employer contained “bogus lies stating that David Harrison had not answered calls which is completely false”; and



• communication with the Employer.

EMPLOYER’S CASE

[12] The Employer submits that:

• the Applicant is probably accurate in saying that at 1 May 2014 he considered that his employment was ongoing;



• however, this situation changed with the Applicant’s email of 13 May 2014 in which the Applicant states that he has “decided to take the advice of the lawyer and take matters further...after again being left off a job once again on 14/5/2014 (sic) proves that your letter is baseless...”;



• the Applicant does not give a reason for the delay between 13 May and 6 June 2014;



• the Applicant does not address any other criterion.

CONSIDERATION

[13] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[14] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[15] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[16] The burden lies with Mr Harrison to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[17] The Applicant does not provide an explanation or the delay after 13 May 2014.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[18] The Applicant appears to have reached the conclusion that the Employer brought the employment relationship to an end on or about 13 May 2014. In doing so, the Applicant was aware that his last day of employment was 30 April 2014.

[19] The Employer stated in its Statement of Facts that on 2 and 3 May 2014, the Applicant was telephoned on five (5) occasions with the purpose of offering work. The Employer states that the Applicant did not respond to the telephone calls.

[20] The Applicant could have, but did not, contest the statements of the Employer as provided for in the Directions.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[21] At some time between 30 April 2014, Mr Harrison had taken legal advice regarding the proposed arrangement set out by the Employer on 1 May 2014.

[22] I note that the Applicant requested by email a Centrelink Separation Certificate on 17 May 2014 which was posted to him on or about 21 May 2014.

[23] It would appear that the next time the Applicant dispute his dismissal was on 6 June 2014 when he made this application.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[24] Neither party made submissions in relation to this criterion. To the extent it is relevant, I have adopted a neutral position.

Paragraph 394(3)(e) - the merits of the application

[25] The Applicant did not make a submission with respect to this criterion.

[26] The Employer submits that the Applicant was employed on a casual ad hoc basis and in accordance with s.384 of the FW Act is an exempt employee and it not able to pursue an application for unfair dismissal.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[27] Neither party made submissions in relation to this criterion. To the extent it is relevant, I have adopted a neutral position.

CONCLUSION

[28] For the above reasons, I am not satisfied there are exceptional circumstances to allow the application to be filed after the statutory timeline of 21 days after the dismissal took effect. From the Applicant’s submission as at 13 May 2014, he had taken legal advice regarding not being provided with work from 1 May 2014. From 13 May 2014 to the date of making the application (6 June 2014), he has not provided a reason for filing the application. Pursuant to paragraph 587(3)(a) of the FW Act, this application is dismissed because of want of prosecution. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 25 June 2014.

Respondent: 14 July 2014.

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