Mr David Roberts v Q Cam Processing Pty Ltd

[2015] FWC 8292

[2015] FWC 8292

FAIR WORK COMMISSION

DECISION

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

Mr David Roberts
v
Q Cam Processing Pty Ltd
(U2015/11979)

COMMISSIONER ROE MELBOURNE, 1 DECEMBER 2015

Application for relief from unfair dismissal - extension of time.

[1] Mr Roberts was dismissed on 20 July 2015 for reasons of alleged redundancy. He became aware of the dismissal on that day and the termination took effect on that day. The Application for unfair dismissal was made on 24 September 2015. The application was initially incomplete and the complete information was provided on 29 September 2015. The Application was therefore six weeks late.

[2] Mr Roberts says that he become aware on 10 September 2015 that his former position had been advertised on SEEK. He says he then researched his notes and what he needed to do to make a claim and made the claim two weeks’ later on 24 September 2015. The discovery by an employee that they had been misled at the time of the dismissal can be a reason for delay which when considered with the other factors can justify a finding of exceptional circumstances. However, in this case there is no reasonable explanation for the two week delay between finding the advertisement and lodging the application. A delay of a few days would be reasonable depending upon the circumstances.

[3] Mr Smith, a manager of Q Cam, gave evidence that another employee, Michael James resigned on 7 September 2015 advising that his last day would be 23 September 2015. Mr Smith says that this resignation was unexpected and it was necessary to replace this position. Ms Sawyer, HR Administrator for Q Cam, gave evidence that an advertisement to replace Mr James was posted on SEEK on 9 September 2015. It is accepted that the job advertised is similar to the job performed by Mr Roberts and one that he had the skills to perform.

[4] The employer also asserts that there was nothing misleading about the information given about the company’s circumstances at the time the termination took place.

[5] I can understand the disappointment and anger of Mr Roberts when he found out that a job similar to his former job had been advertised. It was understandable that he considered that the redundancy may not have been genuine. However, there is no evidence before me that calls into question the evidence of the employer that there was a lack of work at the time that the redundancy took place.

[6] The reasons for delay do not stand in favour of a finding of exceptional circumstances.

[7] Mr Roberts become aware of the dismissal at the time it took effect. This is a neutral factor in the circumstances of this case.

[8] Mr Roberts took no action to dispute the dismissal prior to the lodging of the application. Given the period of delay this is a factor which stands against a finding of exceptional circumstances.

[9] The length of the period of the delay is significant enough to mean that there could be some prejudice to the employer. However, there was no evidence or submission of any particular or significant prejudice. This is a neutral factor.

[10] Q Cam submit that the redundancy was bona fide and that there was a shortage of work and they considered redeployment to an associated company and to other work within the company but there was nothing suitable. The employment was covered by the Manufacturing and Associated Industries and Occupations Award 2010. There is no evidence in the material provided to date that the consultation provision of the Award was satisfied. However, the parties have not been required at this time to provide all of the evidence upon which they rely. The merits of the case are a factor which stand in favour of a finding of exceptional circumstances but not strongly so.

[11] There is no issue of fairness between Mr Roberts and other persons in a similar position which arises from the circumstances of this case.

[12] Considering all of the factors I am not satisfied that there are exceptional circumstances justifying an extension of time. The application is dismissed.

COMMISSIONER

Appearances:

Mr D Roberts represented himself.

Ms J Sawyer appeared for the Respondent.

Hearing details:

2015

Perth

November 20

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