Mr Ian Jones v Bis Industries Limited

[2014] FWC 4092

[2014] FWC 4092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Ian Jones
v
Bis Industries Limited
(C2014/4071)

COMMISSIONER CLOGHAN PERTH, 24 JUNE 2014

Application to deal with contraventions involving dismissal.

[1] On 15 April 2014, Mr Ian Jones (Mr Jones or Applicant) made application to the Fair Work Commission (Commission) alleging that he was dismissed by Bis Industries Limited (Employer) in contravention of Part 3-1 of the Fair Work Act 2009 (FW Act).

[2] Mr Jones alleges he was dismissed in contravention of the FW Act on 24 April 2012.

[3] The application was made pursuant to s.365 of the FW Act

[4] For the Commission to have jurisdiction to hear and determine the substantive application, it is necessary for the application to be made within 60 days after the dismissal took effect pursuant to paragraph 366(1) of the FW Act.

[5] Mr Jones has not made the application within 60 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made, that is, 15 April 2014, if it is satisfied that there are exceptional circumstances, pursuant to s.366(2) of the FW Act.

[6] To resolve whether there are exceptional circumstances to allow the application to be filed on 15 April 2014, I issued procedural directions to the parties on 7 May 2014 advising that the matter would be determined by written submissions.

[7] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 15 April 2014.

[8] I now turn to the relevant legislative provisions which relate to Mr Jones’ application.

RELEVANT STATUTORY PROVISIONS

“365 Application for the FWA to deal with a dismissal dispute

...

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as the FWA allows under subsection (2).

(2) The FWA may allow a further period if the FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[9] I now consider the provisions of the legislation as they relate to Mr Jones’ application.

CONSIDERATION

[10] On 30 April 2012, Mr Jones made application to the then Fair Work Australia seeking a remedy for alleged unfair dismissal which took effect on 24 April 2012 (the same dismissal as in this application).

[11] On 1 June 2012, Mr Jones and the Employer entered into a Deed of Settlement and Release (Deed).

[12] At paragraphs 8 and 9 of the Deed, it states:

“8. Jones agrees that he has no current, future or outstanding claims, demands, liabilities, complaints, proceedings or actions of any kind whatsoever at law or in equity arising from or in connection with Jones’ employment with the company, including cessation of the employment. Jones forever discharges and releases the company, its employees, its officers and directors (and any successors) from any liability for any such claim, demand, complaint, proceeding or action.

9. Jones agrees not to commence, raise, pursue, re-activate or instigate any claim, proceedings or action against any or all of the following:

(i) Bis Industries Limited;

(ii) any Bis Industries related corporations (within the meaning of the Corporations Act 2001 (Cth)); and/or

(iii) any employee, officer, representative, agent or successor of Bis Industries Limited and/or of any related corporation.”

[13] Notwithstanding the terms of the Deed, Mr Jones asserts in this application that a brand new set of circumstances exist and contends:

● that he has been unable to obtain employment since the dismissal because the Employer keeps a “blacklist” which has prevented him from being employed in the resources sector; and/or

● the inference that the Employer has communicated to third parties information relating to him being a “claimer” or having received workers’ compensation payments.

[14] The Employer denies both contentions.

[15] In response to the Employer’s denial of Mr Jones’ contentions, he has provided a statutory declaration from Ms Sandra Thurston dated 26 July 2012 which attaches a hand written statement which she wrote on 25 July 2012. The statement alleges that she telephoned the Employer and sought a verbal reference for the Applicant. From the telephone call, “I got the definite impression Ian Jones was not to be touched and he was not employable”.

[16] Having regard to the criteria in s.366 (2) of the FW Act, I am not satisfied that there are exceptional circumstances to allow the application to be made over two years after the dismissal took effect.

[17] With regards to the criterion in paragraph 366 (2)(d) of the FW Act, I am satisfied from the material provided by the Applicant, even if the application was within the statutory timeline of 60 days after the dismissal took effect, his application would not have a reasonable prospect of success.

[18] Further, the Deed at paragraphs 8 and 9 concluded the matter of his dismissal.

[19] In the circumstances, I am inclined to agree with the Employer in relation to paragraph 366 (2)(c) that it will suffer prejudice should time be allowed to accept the application. The reasons submitted by the Employer are that one of the managers responsible for Mr Jones when he was employed is no longer employed by the Employer and secondly, it entered into a Deed in full and final settlement of the matter.

CONCLUSION

[20] For the reasons set out above, pursuant to s.366 (2) of the FW Act, I am satisfied that there are no exceptional circumstances to allow the application to be filed on 15 April 2014, which is approximately two years after the dismissal took effect.

[21] Secondly, the FW Act prevents what is described as “double dipping” and limit a person to a single remedy relating to the instance of their dismissal. The general rule can be found at s.725 of the FW Act.

[22] Finally, the Deed of 1 June 2012 disposed of Mr Jones’ dispute with the Employer.

[23] In accordance with s.587 of the FW Act, the application will be dismissed. An order to this effect is issued jointly with the Decision.

COMMISSIONER

Final written submissions:

Applicant: 8 and 14 May and 4 June 2014.

Respondent: 3 June 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552230>