Mr Harry Williams v Colaton Pty Ltd T/A Woody's Metalwork
[2010] FWA 612
•29 JANUARY 2010
[2010] FWA 612 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful) termination of employment
v
Colaton Pty Ltd T/A Woody's Metalwork
(U2009/13944)
COMMISSIONER HARRISON | SYDNEY, 29 JANUARY 2010 |
Termination of employment – extension of time.
[1] On 20 November 2009, Mr Harry Williams (the Applicant) lodged an application under s. 643 of the Workplace Relations Act 1996 (the Act) alleging that his termination of employment by Colation Pty Ltd trading as Woody’s Metal Work (the Respondent) was unlawful under s. 659(2)(a) and (f) of the Act. The respondent lodged the application approximately two years and five months after the termination took place.
[2] The matter was listed for Conciliation on 14 December 2009. On 3 December the Respondent lodged an objection under s. 647 of the Act, to the Commission extending the time for lodgement and objecting to the conciliation taking place before determination of the application to extend time.
[3] Instead of holding a hearing to decide the issues, by letter posted 7 December 2009 the Applicant and the Respondent were invited to provide further information and/or documentation in support of or in objection to the issue raised. The parties were asked to provide this material to the Commission as well as the opposing party by 21 December 2009. The parties were advised that if after receiving the other party’s material, they wished to add further submissions in reply; they must do so by 11 January 2010.
[4] Both parties provided further information before 21 December 2009. No further submissions in reply were submitted by either party.
[5] The requirements of the Act in respect of lodging an application within 21 days from the date of termination are set out in subsection 643(15) thus:
“(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”
[6] In relation to section 643 above, the Act makes the note:
“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
The principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns) at 299:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[7] An important principle set out above is that the prescribed time in which to lodge an application should be complied with unless the Commission is positively satisfied to the contrary.
[8] The Applicant’s explanation for the delay in lodgement was that he first lodged a complaint regarding his termination in August 2007 with the Workplace Ombudsman. The outcome of the Workplace Ombudsman’s investigation into the Applicant’s complaint is unclear.
An investigation was then carried out by the NSW Office of Industrial Relations. At the conclusion of the investigation, the Applicant received a letter dated 8 August 2008 concluding that the claim that his employment was terminated due to injury was unable to be sustained. It stated that the Applicant’s employment was terminated as a result of the Applicant’s unwillingness to continue working on the Star City Casino site and his inability to work on any railway sites due to having failed the medical component of the Rail Industry Safety Induction.
The letter concluded by stating that the Applicant did not meet the requirements to commence an unfair dismissal claim, but more information regarding the issue of unlawful termination could be obtained with the Australian Industrial relations Commission.
[9] The Applicant further submitted that he has been unable to have his matter heard due to lack of funds. It was only after obtaining advice from Macarthur Legal Service that he lodged his complaint with the Commission.
[10] This application was lodged approximately two years and five months after termination. In considering the Applicant’s explanation, he does not disclose an explanation as to the reason for the delay in pursuing the issue of unlawful termination. It appears that he did not approach Macarthur Legal Service for advice until approximately two years after the termination.
[11] Having regard to all of the circumstances in this matter and the submissions of the Applicant, I am not satisfied that there is an acceptable explanation for the delay sufficient to exercise my discretion to extend time.
[12] The application is dismissed and an order giving effect to this decision is issued in PR993094.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR993094>
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