Mr Gino Williams v Ensco Australia Pty Limited

[2014] FWC 2713

[2014] FWC 2713

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Gino Williams
v
Ensco Australia Pty Limited
(U2014/4651)

COMMISSIONER CLOGHAN PERTH, 24 APRIL 2014

Unfair dismissal.

[1] On 14 February 2014, Mr Gino Williams (Mr Williams or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Ensco Australia Pty Limited (Employer).

[2] Mr Williams alleges that he was dismissed by Ensco Australia Pty Limited on 10 June 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 paragraph 394(2) of the FW Act.

[5] Mr Williams has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 14 February 2014), if it 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.

[6] On 7 March 2014, I issued procedural directions advising the parties that I intended to deal with the issue of whether I should allow Mr Williams to lodge his application on 14 February 2014, by way of written submissions.

[7] Mr Williams did not provide his written submission on 24 March 2014 as required. Further, Mr Williams did not communicate with the Commission why he was unable to provide his submission.

[8] On 16 April 2014, the Employer provided the following email, dated 10 June 2013, from Mr Williams to the Employer:

“As discussed earlier today, I think it best for all parties that I resign and hopefully you guys can appreciate all the good work done.”

[9] Having considered the lack of a submission from the Applicant and the Employer’s documentation, the application will be dismissed pursuant to paragraph 587(3)(a) of the FW Act. An Order to this effect is issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

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