Mr David Tromp v Tuxworth and Woods Carriers T/A Northern Freighters

[2014] FWC 2673

[2014] FWC 2673

FAIR WORK COMMISSION

DECISION

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

Mr David Tromp
v
Tuxworth and Woods Carriers T/A Northern Freighters
(U2014/4274)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 APRIL 2014

Summary: application for an unfair dismissal remedy - application one day out of time - discussion of authorities - no exceptional circumstances in evidence.

[1] Mr David Tromp lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) on 4 February 2014, seeking an unfair dismissal remedy in relation to his dismissal by Tuxworth and Woods Carriers T/A Northern Freighters (“the employer”).

[2] The matter did not proceed to substantive hearing for reason that the employer objected to the Fair Work Commission (“the Commission”) further dealing with the matter until such time as it was determined whether the application was compliant with the requirements of s.394(2) of the Act.

Legislative provisions

[3] Section 394 of the Act relevantly provides as follows:

[...]

(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.

Consideration

[4] The Applicant’s evidence in relation to the various matters set out at s.394(3) of the Act is as follows.

[5] The Applicant makes the point that his application was lodged only one day outside the time limit stipulated in s.394(2)(a) of the Act.

[6] But whether it be one day outside the time limit or more, the Commission must be satisfied that there are exceptional circumstances in existence taking into account the matters set out at s.394(3) of the Act (above). There is no further scope for the Commission to consider the application, such as by a general exercise of discretion.

[7] The Full Bench in Mihajlovic v Lifeline MacArthur[2014] FWCFB 1070 considered s.394(2) of the Act and found that the:

Section 394(2)(b) confers power on the Commission to extend the time for the filing of an application beyond the 21 day time limit prescribed by s.394(2)(a) in accordance with s.394(3). Section 394(3) requires that such an extension of time may only be allowed if the Commission is satisfied that there are ‘exceptional circumstances’ taking into account six specified matters. The specific nature of this power and the highly prescriptive terms upon which it is conferred strongly indicate that s.394(2)(b) is the only power to extend time for the filing of an unfair dismissal application and that it is not open to the Commission to extend time to lodge an unfair dismissal application by use of any general power it may otherwise possess under the Act. 1

[8] The Full Bench in Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 considered an appeal against a decision of a single member in which the single member refused to allow an application under s.394 of the Act for reason that it had not complied with the 21 day requirement under s.394(2)(a) of the Act because the application was filed on the 22nd day.

[9] The Full Bench upheld the decision of the member at first instance where that decision found as follows:

Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances. Weighing all of the matters set out in s.394(3), there is nothing in the evidence before me to establish that there are exceptional circumstances warranting consideration of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application. 2

[10] The member at first instance, whose decision was upheld by the Full Bench, also stated as follows:

Counsel for the Applicant submitted that once the Applicant became aware that the Commission was the appropriate body with which to make a complaint about his dismissal he acted promptly. That may be so but it does not explain the delay. The Applicant became aware that the Commission was the appropriate body within sufficient time to enable him to lodge his application within the 21 day period. He did not do so. It is the delay that must be explained, and here there is no acceptable explanation for the delay. 3

[11] The circumstances before me bear some similarity to the matter referred to above. Those circumstances are as follows:

(a) the reason for the delay

[12] The Applicant claims that about one week after his dismissal he contacted the Fair Work Ombudsman and was informed that he needed to contact the Fair Work Commission and must make an application within 21 days of his dismissal having taken effect. The Applicant evidence was that he appreciated this was the 21 day period that commenced from 13 January 2014.

[13] The Applicant gave further evidence that he approached the Fair Work Commission (by telephone) about 3 days before the 21 day period expired and sought forms for purposes of making an application for relief under s.394 of the Act.

[14] Those forms, the Applicant states, were e-mailed to him that same day by the Fair Work Commission.

[15] The Applicant states that he completed the forms that evening and gave them to his daughter to e-mail back to the Fair Work Commission.

[16] He claims his daughter must have failed act in accordance with his direction and her inaction caused the forms to be not received by the Fair Work Commission until the day after the 21 day period; that is on the 22nd day.

[17] The Applicant was queried as to what steps he took to facilitate an application between the time he contacted the Fair Work Ombudsman and the time at which he contacted the Fair Work Commission. The Applicant contended that some two days after he was dismissed he obtained new employment and was working long shifts subsequently. He claims he had no time to make an application.

[18] The Applicant also claims that he had no access to a computer, though he had difficulty denying that computing facilities were generally available to him in the community.

[19] It appears to be more the case that the Applicant, as he commented, “was all over the place” given his new work commitments which commenced shortly after his dismissal.

[20] The Applicant’s explanation for the delay in lodging his application did not extend further than this evidence.

(b) whether the person first became aware of the dismissal after it had taken effect

[21] The Applicant’s evidence was that he became aware of the dismissal at the time it took effect, which was 13 January 2014.

(c) any action taken by the person to dispute the dismissal

[22] The Applicant on his own evidence did not take any action to dispute his dismissal other than by making the application which is subject to the current consideration.

(d) prejudice to the employer (including prejudice caused by the delay)

[23] The Applicant had no evidence to impart in relation to whether or not by allowing his application in a different period any prejudice would accrue to the employer. The employer conceded that no prejudice would follow.

(e) the merits of the application

[24] The merits of the application have not been considered in detail, as is ordinarily the case in a proceeding of this kind. At most I can only conclude that the merits of the application bear in neutral terms upon my wider considerations.

(f) fairness as between the person and other persons in a similar position.

[25] No issue of relevance was raised in relation to whether or not an issue of fairness arose between the Applicant and another person in a similar position.

Conclusion

[26] The Applicant attended the hearing but without his notes which he had retained and which went to the evidentiary issues central to this determination. However, upon questioning the Applicant as to whether any of his evidence may be inconsistent with his notes, the Applicant was adamant that there was no disjunction.

[27] Following the full bench authorities set out above, I can only exercise my discretion to allow the application in a different period if I am satisfied that there are exceptional circumstances arising from the evidence before me in relation to the matters set out in s.394(3) of the Act.

[28] The evidence does not reveal any such exceptional circumstances. The Applicant was distracted by his rapid transition to new work and despite being aware of the statutory deadline did not take the necessary steps to facilitate an application within the relevant period of time. The Applicant did, however, manage in this same period to find time to contact the Fair Work Ombudsman (whereupon he was advised of the appropriate jurisdiction and the relevant time limit), and then the Fair Work Commission itself, at a somewhat later point (whereupon he was promptly provided the relevant application form to complete).

[29] In the end, the Applicant’s evidence points me to the conclusion that though the Applicant was aware of the short period of time remaining to make the application within the required period, he did not maintain sufficient oversight of the task he had apparently assigned his daughter - which was to file the application promptly. The Applicant cannot reasonably hide behind his daughter’s allegedly dilatory conduct.

[30] The reasons and the wider circumstances set out above reveal nothing of any exceptional character that would give me cause and/or justify me exercising my discretion to allow the application in a different period. Further, as I have set out above by reference to the relevant Full Bench authority (Ozsoy v Monstamac Industries Pty Ltd), the fact that the application was made on the 22nd day and not within the 21 day period required by s.394(2)(a) of the Act does not in its own right bear upon my considerations.

[31] Because of this finding I must now dismiss the application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D. Tromp, Applicant

Ms R Bottomer, of HR Dynamics, for the Respondent

Hearing details:

By telephone

2014

17 April

 1   [2014] FWCFB 1070 at 20.

 2   [2014] FWC 479 at 30.

 3   [2014] FWC 479 at 20.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549911>