Mr Geoffrey Leadley v Sunshine Coast Commercial Pty Ltd T/A L J Hooker Commercial Noosa

[2010] FWA 9167

[2010] FWA 9167

FAIR WORK AUSTRALIA

DECISION

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

Mr Geoffrey Leadley
v
Sunshine Coast Commercial Pty Ltd T/A L J Hooker Commercial Noosa
(U2010/8804)

COMMISSIONER ASBURY BRISBANE, 29 NOVEMBER 2010

Termination of employment – jurisdiction – application lodged beyond time allowed.

Background

[1] On 1 April 2010, Mr Geoffrey Leadley was dismissed by Sunshine Coast Commercial Pty Ltd T/A LJ Hooker Commercial Noosa. On 14 May 2010 Mr Leadley filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act). By virtue of s.394(2) of the Act, an application for an unfair dismissal remedy must be made:

(a) Within 14 days after the dismissal took effect; or

(b) Within such further period as FWA allows under subsection (3).

[2] The application was accompanied by a covering email, stating that it was out of time but that there are extenuating circumstances.

[3] A Directions Conference was held on 19 July 2010 and Directions were made for the filing of material in relation to whether Fair Work Australia should allow a further period for the application to be made. The Directions indicated that in the event that witness statements were filed, parties were required to advised Fair Work Australia whether they wished to cross-examine witnesses, and that in the absence of such a request, the question of whether a further period should be allowed for the application to be made, would be determined on the basis of material filed by the parties. Material was filed and there was no request for cross-examination. The application is accordingly determined on the basis of submissions.

Submissions

[4] Mr Leadley stated that his employment was terminated on “Easter eve”. On the following Wednesday, 6 April 2010, Mr Leadley visited his accountant who advised him to research and prepare claims for monies due from his employment and assisted him to respond to his former employer in respect of entitlements. LJ Hooker Commercial Noosa also submitted a claim against Mr Leadley. When it became apparent that there would be a dispute over Mr Leadley’s entitlements, his accountant told him to summarise all facts and the claim and that he would canvas a lawyer for Mr Leadley. The Accountant also advised Mr Leadley that he had 60 days to lodge a claim with Fair Work Australia in respect of his termination.

[5] Mr Leadley said that as money was an issue, his accountant assisted him at no cost. Once his information was collated, an interview with a solicitor was arranged. There is no evidence of the date on which this meeting occurred. The Solicitor reviewed Mr Leadley’s information and confirmed that he had a claim on several grounds including unlawful termination and unfair dismissal. Due to cost issues, the solicitor advised Mr Leadley to submit the application himself, and directed Mr Leadley in relation to where to go and what to do. Mr Leadley completed his application and lodged it within 60 days of the date his dismissal took effect, in accordance with the advice he had received. Mr Leadley submits that his claim has a number of aspects including unfair dismissal and unlawful termination.

[6] Essentially, Mr Leadley contends that his dismissal constitutes unlawful termination, on the basis that it was motivated by the fact that he made complaints about LJ Hooker Commercial Noosa to the Australian Taxation Office and to the Office of Fair Trading. There is no evidence about the substance of these complaints or the date on which they were made. Mr Leadley states that there is no doubt his employment has been unlawfully terminated owing to him: “filing a complaint or participating in proceedings against an emloyer.”

[7] Mr Leadley’s application is made under s.394 of the Fair Work Act and is an application for an unfair dismissal remedy. Mr Leadley stated as follows in response to the questions on the Form F2 completed by him:

“1. What was the period of your employment?

Date employed: 26 January 2006

Date notified of dismissal: 1 April 2010

Date dismissal took effect: 1 April 2010

2. What were the reasons for dismissal, if any, given by your employer?

In a letter from my employee (sic) he states that ‘you have committed an act of theft by wilfully removing items belonging to the company from the premises.’

3. Why was the dismissal unfair?

The accusation is a nonsense which I deny as the items he maintains I stole were not stolen and I do not have these items, namely my personel file, 8 reams of photocopy paper and files of management and sales businesses.”

[8] Mr Leadley submits that he has acted on professional advice with respect to requirements of Fair Work Australia claim times, and was entitled to take that advice at face value and to believe that he was operating within Fair Work Australia claim times and has made his application within the time allowed for an unfair termination claim. Mr Leadley also states:

“Due to cost constraints, acting on my own, I may have inadvertently mixed up the basis of my claim and the time frames, and my application has not clearly stated a claim for both ‘unlawful termination’ and ‘unfair dismissal’.”

[9] Mr Leadley seeks that Fair Work Australia accept his claim as lodged, and allow a further period for the application to be made, or accept his claim as being: “amended to include a claim for unlawful termination” and allow his claim to proceed as a Fair Work Australia claim.

Legislation

[10] Section 394(3) of the Act vests FWA with discretion to extend the time in s.394(2) for a person who is dismissed to make an application for an unfair dismissal remedy. FWA may allow a further period for the application to be made, if FWA 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.

Conclusions

[11] Mr Leadley was required to make his application for an unfair dismissal remedy on 15 April 2010. The application was made on 14 May 2010, some 43 days after Mr Leadley’s dismissal took effect and 29 days after the time allowed in s.394(2) of the FW Act.

[12] Mr Leadley essentially gives as a reason for his failure to make an unfair dismissal in the time allowed, that he mistakenly thought that he had sixty days to make such an application. Mr Leadley also states that he believed he could make a single claim for both unfair dismissal and unlawful termination, and intended to do so.

[13] Mr Leadley had access to advice from an accountant and a solicitor before making his application. There is no evidence, other than an assertion from Mr Leadley, that he was given incorrect advice about the basis upon which an unfair dismissal application could be made, or the time allowed in which to do so. Mr Leadley did not make his application in the required time frame, and in my view there is nothing exceptional about the circumstances in which he failed to do so.

[14] The fact that Mr Leadley had a misconception about the type of claim that he made, does not constitute exceptional circumstances. There is nothing in the application for an unfair dismissal remedy filed by Mr Leadlie to indicate that he intended to make an unlawful termination application or an application under the general protections provisions of the FW Act in relation to contraventions involving dismissal. The facts set out in the application make no reference to Mr Leadley contending that his dismissal was because he filed a complaint or participated in proceedings against his employer. On its face, the application does no more than seek a remedy for unfair dismissal.

[15] Other than a bare assertion made in submissions, there is no evidence that Mr Leadlie actually filed a complaint or participated in proceedings against his employer. At best, the submission states that Mr Leadlie made enquiries to the Australian Taxation Office and the Office of Fair Trading in relation to activities of the employer, and that one or both of those organisations contacted the employer to indicate that a complaint had been made.

[16] There is no indication of any prejudice to LJ Hooker Noosa which would be caused by allowing Mr Leadley further time in which to make an unfair dismissal application.

[17] The factual background to the dismissal is contested and I am unable to make any finding concerning the merit of the substantive application. However, I am of the view that Mr Leadley’s submissions about the basis of his application are misconceived, and that this is a relevant consideration in deciding whether to allow a further period to make the application should be allowed.

[18] Mr Leadley was a national system employee, and entitled to make a general protections Fair Work Australia application. Mr Leadley did not do so, and the application he made for unfair dismissal does not raise any of the grounds in the relevant sections in Chapter 3, Part 3-2 of the Act. By virtue of s.723 of the Act, Mr Leadley is prevented from making an unlawful termination of employment application. Further Mr Leadlie is not able to make a single application encompassing claims that he has been unfairly dismissed and that his dismissal involved a contravention under the general protections provisions of the FW Act.

[19] The provisions of Chapter 6 Part 6-1 Division 3 of the Act prevent Mr Leadley from making a general protections application to Fair Work Australia while his unfair dismissal application is on foot.

[20] I am unable to accept that there are exceptional circumstances to justify a further period being allowed for Mr Leadley to make a claim for unfair dismissal.

[21] I am also unable to accept that an amendment should be allowed to an application for unfair dismissal, particularly in circumstances where that application raises no issues relevant to a general protections application.

[22] Mr Leadley’s application for a further period to apply for an unfair dismissal remedy is refused. The application in U2010/8804 is dismissed. I Order accordingly.

COMMISSIONER

Final written submissions:

2 August 2010.

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