Mr Hernan Eduardo Morales v OTR Tyres Australia
[2010] FWA 1101
•12 FEBRUARY 2010
[2010] FWA 1101 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful) termination of employment
v
OTR Tyres Australia
(U2010/5115)
COMMISSIONER CLOGHAN | PERTH, 12 FEBRUARY 2010 |
Application for relief re (unlawful) termination of employment.
[1] On 5 January 2010, Fair Work Australia (FWA) received an application (Form R27) from Mr Hernan Morales pursuant to s.643 of the Workplace Relations Act 1996 (“the Act”) (Application U2010/5115).
[2] Mr Morales has sought relief in relation to his unlawful termination of employment pursuant to s.659 of the Act.
[3] Mr Morales did not, in his application, set out the specific provisions of the Act which were contravened by his termination, however, he attached documentation related to his domestic and financial circumstances. Mr Morales also provided a “Statement Summary of Material Facts”.
[4] Mr Morales’ termination of employment took place on 10 May 2010.
[5] The Act provides that an application for relief in relation to termination of employment must be lodged within 21 days after the day on which the termination took effect “or within such period as the Commission allows on an application made during or after those 21 days” (s.643(14) of the Act).
[6] As Mr Morales’ application was beyond the statutory 21 days, he set out the following reasons why the matter should not be dismissed without a hearing as provided for in s.647 of the Act:
- have been in a depressed state due to my family emergency;
- too scared I’ll get black listed in the mining industry;
- too scared to speak out and do something about it;
- I was promised a good reference when needed; and
- was given a qualification to keep me quiet.
[7] On 20 January 2010, FWA received notice that the Australian Mines and Metals Association would be representing the Respondent Employer and objecting to Mr Morales’ request for an extension of time to lodge the application.
[8] After Mr Morales’ application was referred to me for determination, I wrote to him on 21 January 2010 inviting him to provide further information in support of his request for an extension of time. I advised Mr Morales that if I did not receive the information by 29 January 2010, I would determine his request on the information that I had before me.
[9] Mr Morales provided further information on 29 January 2010.
[10] In essence, the additional information provided by Mr Morales in not too dissimilar from his previous reasons for an extension of time. However, Mr Morales had advised that, after several telephone calls to this former employer, he “settled for the actual fact [t]hat I was not going to get my job back no matter…so I proceeded to ask that I get a good work reference” – which he received on 28 May 2009.
[11] In determining whether an extension of time should be granted, I have applied the principles set down by the Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300:
(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 of the delay which makes it equitable to so 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.
[12] The starting point for any determination to grant an extension of time, is that the statutory time limit should be complied with unless there is an acceptable reason for the delay. By his own admission, Mr Morales knew his termination of employment was final and had no prospects of re-employment somewhere between 10 May and 28 May 2009 when he sought a reference. On this basis alone, the Tribunal could reach the conclusion that an extension of time should not be granted.
[13] Mr Morales’ explanation for the delay are varied, but for good reason, I will refer to them as the “domestic circumstances” in which he found himself. While the Tribunal may sympathise with Mr Morales, it has to balance these considerations with what is fair and reasonable in terms of the legislation and the Respondent Employer. If I accepted Mr Morales’ submission without reservation, the Tribunal would be doing a disservice to the Respondent employer and the legislation.
[14] While Mr Morales may have been pre-occupied with his family circumstances during this period, the extension of time of seven (7) months is not insignificant. Further, for Mr Morales to say that he is now feeling “stronger” to pursue the application, is an insufficient explanation as it would enable him, and all other applicants, to unilaterally self determine an extension of time – a situation which is not sustainable.
[15] Finally, as I indicated, the extension of time is significant and that of itself may be prejudicial to the Respondent Employer. While I have not enquired into the reasons for the Employer’s objections to an extension of time and to a conference to discuss this matter, I presume it considers Mr Morales’ request unreasonable given the lapsed time.
[16] In conclusion, having considered all the information submitted by Mr Morales, the statutory provisions, the Respondent Employer’s position and the principles set down by the Industrial Relations Court, I do not consider it appropriate to extend the time to lodge the application by Mr Morales.
[17] The application is accordingly dismissed; an Order to this effect is issued.
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