Mr Gary Robertson v WATM Crane Sales and Services

[2014] FWC 3350

[2014] FWC 3350

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Gary Robertson
v
WATM Crane Sales and Services
(U2014/5570)

COMMISSIONER CLOGHAN PERTH, 22 MAY 2014

Application for relief from unfair dismissal.

[1] On 13 March 2014, Mr Gary Robertson (Mr Robertson or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, WA Trucks Repairs Pty Ltd T/A WATM Crane Sales & Services (Employer).

[2] Mr Robertson alleges that he was dismissed by WATM Cranes Sales & Services on 22 November 2013.

[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 s.394(2) of the FW Act.

[5] To assist in the resolution of the Employer’s jurisdictional objection, I issued procedural directions on 31 March 2014 and advised the parties that the matter would be determined following written submissions.

[6] Having received the written submissions, this is my decision and reasons for decision on whether I am satisfied that there are exceptional circumstances to allow the application to be lodged beyond the statutory timeline of 21 days after the dismissal took effect in accordance with ss.394(2) and (3) of the FW Act.

RELEVANT LEGISLATIVE FRAMEWORK

[7] 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

[8] Mr Robertson commenced employment on 6 May 2012.

[9] On 22 November 2013, Mr Robertson received correspondence terminating his employment by reason of redundancy. Mr Robertson was not required to work his period of notice and was paid in lieu of notice, redundancy pay and accrued entitlements.

[10] I now turn to the relevant legislative provisions which relate to Mr Robertson’s application.

CONSIDERATION

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

[11] Mr Robertson submits:

● on 10 December 2013 (3 days before the statutory timeline expired) his step-father was involved in a serious accident;

● as a consequence of his step-father’s accident, he was the primary family member who assisted in his rehabilitation. The Applicant’s mother is elderly;

● “With my Step Dad at home and receiving regular care, it now allows me the time to address this important situation or at least search for reasons why I was dismissed for no fault of my own and made redundant. Since my dismissal I have found cause that makes me suspect my dismissal wasn’t about my position being redundant at all. It is for these reasons I seek an extension be granted that might allow me to seek action against my previous employer for dismissing [me] only four weeks before Christmas. Had my employer at the time waited until after Christmas or allowed me a week or two to find new employment, everything would have been fine.”

[12] The strength of Mr Robertson’s submissions are set out in the previous paragraph, notwithstanding that it does not explain why he did not take action to lodge his application in the first 18 days after his dismissal took effect.

[13] However, the strength of his submission is undermined by the statement in his application as follows, “as it turns out, the money in bank account that being my redundancy and all savings were gone in a period of seven weeks, almost the same time I secured a new job”. (my emphasis)

[14] From Mr Robertson’s statements, it would appear that, notwithstanding his step-father’s serious accident, in approximately seven weeks, he was able to apply himself to finding other employment. These circumstances can only lead to one conclusion and that is the Applicant found time to find alternative employment but not to lodge an application with the Commission.

[15] Secondly, and importantly, assuming that Mr Robertson found employment towards the end of January or early February 2014, it does not explain why he did not make an application until 13 March 2014. While Mr Robertson contends that he was continuing his involvement in his step-father’s rehabilitation, I am not satisfied that he could not have adjusted his daily regime to make an application to the Commission.

[16] I am satisfied that Mr Robertson was confronted with a series of difficulties beginning with his redundancy on 22 November 2013. However, I am not satisfied that these difficulties were sufficient and convincing, in a number of respects, to demonstrate that he was incapable of lodging, between 22 November and 10 December 2013, and secondly, in the period up to 13 March 2014, an application to the Commission. Clearly, Mr Robertson had other priorities but, in life, we all have priorities to confront. Having to confront priorities is not exceptional - it is a daily exercise. For a person who is dismissed, the Parliament has set out the necessity of lodging an application within 21 days after the dismissal took effect and which dismissed employees must take into account in their priorities.

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

[17] This is not an application where there is uncertainty about the date of the dismissal or when Mr Robertson became aware of his dismissal. Mr Robertson was made aware of his dismissal by way of written correspondence from the Employer on 22 November 2013. The dismissal took effect on the same day - 22 November 2013.

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

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

[18] Neither Mr Robertson nor the Employer has addressed these criteria. I adopt a neutral position as to their relevance or weight in determining whether there are exceptional circumstances to allow the application to be filed on 13 March 2014.

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

[19] Both parties addressed this criterion extensively.

[20] Mr Robertson asserts that his dismissal was not a case of genuine redundancy. The Employer states that the dismissal was a genuine case of redundancy and that Mr Robertson’s role has not been replaced. The veracity of these claims can only be tested, if necessary, in a hearing where evidence is critically examined. For this reason, I adopt a neutral position in relation to this criterion.

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

[21] Neither party addressed this criterion. To the extent it is relevant, I have adopted a neutral position as to whether there are exceptional circumstances to allow the application to be lodged beyond the statutory timeline after the dismissal took effect.

CONCLUSION

[22] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Robertson filing his application. Accordingly, the application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 15 April and 14 May 2014.

Respondent: 9 May 2014.

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