Mr David O'Riordan v Asphar Survey Group Pty Ltd

[2013] FWC 7272

[2013] FWC 7272

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr David O'Riordan
v
Asphar Survey Group Pty Ltd
(U2013/1873)

COMMISSIONER CLOGHAN PERTH, 20 SEPTEMBER 2013

Unfair dismissal.

[1] On 6 June 2013, Mr David O’Riordan (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Asphar Survey Group Pty Ltd (Employer).

[2] Mr O’Riordan’s employment was terminated with immediate effect on 20 February 2013 and he was given two (2) weeks pay in lieu of notice.

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

[4] The application was not resolved at conciliation and was referred to me on 2 August 2013.

[5] 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 (see paragraph 394(2) of the FW Act).

[6] Mr O’Riordan 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 2013), 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.”

[7] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Mr O’Riordan to file his application on 6 June 2013 by way of written submissions. To assist in the written submissions, I issued procedural directions on 7 August 2013.

[8] The Applicant provided his submission on 21 August 2013.

[9] The Employer did not provide a submission on 5 September 2013.

[10] As a consequence, Mr O’Riordan did not, and could not, reply to the Employer’s submission on 10 September 2013.

[11] Having received the Applicant’s submission, this is my decision and reasons for decision on whether the Commission is satisfied that exceptional circumstances exist to allow the application to be filed on 6 June 2013.

APPLICANT’S SUBMISSION

[12] The following is a summary of the Applicant’s submission:

● he received a medical certificate certifying that he was unable to work from 6 February to 15 February 2013;

● on 20 February 2013, he was “dismissed without prior verbal or written warning and was told I was being made redundant”;

● no other staff member was made redundant;

● he questioned the lack of details regarding redundancy in his letter of termination within 21 days but received responses after 21 days by which time it was “too late to make an unfair dismissal claim”;

● he was “strung along” while searching for a new job;

● as a 457 Visa holder, it was necessary to find a new job as a Business Analyst or leave the country;

● on an unspecified date, he moved to Sydney looking for employment.

● on 30 May 2013, he was advised by the Employer that his employment was terminated “due to a downturn in the surveying industry” and not because the position was made redundant; and

● he was an “easy target” being a 457 Visa holder, unlikely to have knowledge of the Australian dismissal practices and “injured and heavily medicated at the time of being terminated”. Further, the Applicant asked to work part-time to minimise costs and as a 26 years old was the youngest person on the management team.

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 vast majority of employees who do 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 O’Riordan 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] On 20 February 2013, the Applicant was dismissed and given two (2) weeks pay in lieu of notice.

[18] Mr O’Riordan hypotheses that his dismissal was due to illness or injury. However, that matter does not go to the issue of the reason for the delay in lodging the application. Even if I was to consider illness or injury as a reason for the delay, I have no medical evidence to the effect that the illness or injury was a factor in the delay in lodging the application. Mr O’Riordan resumed work after a period of sick leave for a “reconstructed” little finger on his left hand and was terminated on 20 February 2013.

[19] Mr O’Riordan infers that as a 457 Visa holder, it was necessary for him to find a new job or leave the country. There is nothing exceptional in an employee having to find another job having been dismissed. For those without independent means, it is a normal course of action.

[20] Mr O’Riordan refers to his age, being an “easy target” for dismissal as a 457 Visa holder and the youngest person on the management team. These points may have some validity, but they do not focus on what matters and that is the delay in filing the application 85 days beyond the statutory timeline of 21 days after the dismissal took effect.

[21] Mr O’Riordan infers that it was necessary that he travel to Sydney to find a job and this was a factor for the delay in filing the application. However, in his application, Mr O’Riordan includes an email dated 20 March 2013, exactly a month after his dismissal. The email includes the following:

“I’m doing well over on the East Coast.

Still on the job hunt which is just as difficult as working except I am able to go surfing at lunch time (pretty nice perk).

I hope to hear back about a job today actually. Fingers crossed.

I’ve been surfing a good bit lately...

Anyhow, I reckon its surf time for me again.

Take care bro.”

[22] I am satisfied that there were no exceptional reasons for the delay in lodging the application in the Commission. In short, Mr O’Riordan was occupied on other matters which he considered more appropriate and important.

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

[23] From the application and letter of termination of employment, Mr O’Riordan was notified verbally, and in writing, of his dismissal on 20 February 2013.

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

[24] On being advised of his termination of employment on 20 February 2013, Mr O’Riordan entered into a long email exchange with the Employer.

[25] The email exchange commences on 4 March 2013. However, it is querying both redundancy payments and when he would receive his final pay. The Applicant forwards further emails on 13 March 2013. On the same day, he is advised that his final pay has been “processed”. Mr O’Riordan responds on the same day, “No worries...”. As a result of not receiving his final pay, Mr O’Riordan queries this again on 26 March 2013. Further emails ensue in April 2013 and May 2013 on the taxation treatment of his final pay. These queries can be summarised in the Applicant’s email of 28 May 2013 when he asks the Employer:

“What is the situation regarding improper taxing of my last paycheck and redundancy payment?”

[26] I am satisfied that the Applicant certainly queried and contested his final payment of salary after termination of employment, but this is not questioning, challenging, resisting, contesting or disputing the dismissal.

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

[27] The Applicant has not addressed this criterion in his submission. As I have not received a submission from the Employer, I am unaware of whether there is any prejudice to the Employer. Consequently, I have adopted a neutral position with respect to this criterion.

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

[28] The Applicant has not addressed this criterion in his submission. However, Mr O’Riordan suggests both in his application and submission that he was made redundant. Pursuant to subsection 385(d) of the FW Act, a person cannot be unfairly dismissed, if the dismissal was a genuine redundancy. Whether the Applicant’s dismissal was a genuine redundancy can only be determined after a hearing where evidence is tested. Although the Applicant appears to be submitting that his dismissal was a case of genuine redundancy and therefore, excluded from protection from unfair dismissal, I have adopted a neutral consideration of this criterion as to whether time should be extended to file the application.

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

[29] The Applicant has not addressed this criterion in his submission. However, it would appear that it is not a relevant criterion. For this reason, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[30] In conclusion, for the reasons I have set out above generally and those in particular, I am not satisfied that exceptional circumstances existed which led to the delay in Mr O’Riordan filing his application. Accordingly, the application must be dismissed. An Order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 21 August 2013.

Respondent did not provide a submission.

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