Mr Dean Hensley v Mass (Australia) Pty Ltd t/a Mass Steel

[2011] FWA 5994

[2011] FWA 5994

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Dean Hensley
v
Mass (Australia) Pty Ltd t/a Mass Steel
(C2011/4925)

COMMISSIONER DEEGAN CANBERRA, 2 SEPTEMBER 2011

General protections application - lodged after 60 day deadline - whether exceptional circumstances justifying extension of time.

[1] On 29 June 2011 Mr Dean Hensley (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment by Mass Australia Pty Ltd trading as Mass Steel (the Employer) in contravention of a provision of the Act. It was common ground that the Applicant had been dismissed by the Employer on 29 April 2011.

[2] Section 366 of the Act provides as follows:

366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[3] The application in this matter was lodged 61 days after the date the dismissal took effect.

[4] The matter was listed for hearing on 1 September 2011 to allow the applicant to provide reasons for the application being made out of time. At the hearing the applicant was self-represented and the Employer was represented by the Managing Director, Mr Rohan Arnold.

[5] The applicant explained that in the week following his dismissal he had contacted the Office of the Fair Work Ombudsman (FWO) concerning his dismissal. In the same week he had had a conversation with Mr Arnold in which he had advised Mr Arnold that he intended to take the matter of his dismissal to “Fair Work”. The applicant explained that he had heard nothing back from the FWO despite sending documents to that office by facsimile.

[6] According to the applicant it was only a couple of days before the expiration of the 60 day time limit that he became aware of the “other part of Fair Work” and took the opportunity to download and complete the appropriate form for making the s.365 application. He then lodged the form as soon as he had completed it, in the belief that he had met the 60 day time limit.

[7] The applicant stated that he had been unable to follow up his complaint to the FWO or take any other action in relation to the matter through May and June as he had been working away from home (in Wagga Wagga) and did not have access to his computer.

[8] The applicant gave no other reasons for failing to lodge his application within the time allowed by the legislation and advised that, apart from his conversation with Mr Arnold on or about 3 May 2011, he had not pursued the matter any further with the Employer.

[9] Mr Arnold, for the Employer, submitted that time should not be extended for the filing of the application. He noted that 60 days was an extensive period and that the time limit imposed by the Act was there for a purpose. He also expressed his surprise that the Employer had had no contact from the FWO if the applicant had filed a complaint with that Office early in May.

[10] At the conclusion of the parties’ submissions I indicated that I would not allow a further period of time for the filing of the application as I was not satisfied that there were exceptional circumstances attached to the applicant’s failure to lodge on time. On the information provided in the application I am satisfied that the application is not totally without merit but note that the applicant did not make any effort to pursue his claim between early May and very late June. The employer did not claim any prejudice due to the delay but nothing in the circumstances outlined by the applicant renders his position exceptional.

[11] An order dismissing the application is published separately.

Appearances:

Mr Dean Hensley, self-represented, for the Applicant.

Mr Russell Arnold, Managing Director - Mass Steel, for the Respondent.

Hearing details:

2011.
Canberra:
September, 1.

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<Price code A, PR514171>