Mr Jacob Dwyer v Prospect Group

[2014] FWC 2334

[2014] FWC 2334

FAIR WORK COMMISSION

DECISION

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

Mr Jacob Dwyer
v
Prospect Group
(U2014/444)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 APRIL 2014

Summary: unfair dismissal application under s.394 - extension of time - application dismissed.

[1] This application is an application made under s.394 of the Fair Work Act 2009 (“the Act”) by Mr Jacob Dwyer (“the Applicant”) in relation to his dismissal on 15 January 2014 by the Prospect Group Pty Ltd (“the employer”) on purported grounds of operational requirements. Notwithstanding this, the Applicant is seeking relief in respect of what he considers to have been a harsh, unjust or unreasonable dismissal.

[2] The employer objected to the substantive application proceeding on the grounds of genuine redundancy, for the purposes of s.389 of the Act. The employer also contended that the Applicant had not complied with the requirements of s.394(2) of the Act (as set out further below).

[3] In this latter respect, the application was made some 9 days after the time stipulated at s.394(2)(a) of the Act.

[4] By way of background, it appears the Applicant was employed on 8 February 2013 as a Senior Recruitment Consultant on a salary of some $80,000 per annum. Some 11 months later he was made redundant by his employer on grounds of there having been a significant downturn in the search/recruitment industry. The downturn appears to have resulted in the employer having made other senior recruitment consultants redundant in the second half of 2013.

[5] In mid-2013, the employer had communicated to all staff that it needed to reduce its cost base by 20% leading into the new financial year. The poor trading conditions continued into the new financial year. It was argued by the Respondent that the Applicant had not generated any revenue in his position in the last quarter of 2013 and his position was no longer commercially tenable as a consequence.

[6] The Respondent offered to redeploy the Applicant to a lower paid position as an alternative to redundancy, as it alleged that was the only position to which the Applicant could have been redeployed. The Applicant declined the opportunity to be redeployed.

The extension of time matter

[7] Before turning to the issue of whether or not there was a genuine operational reason for the Applicant’s dismissal, it is firstly necessary to determine whether his application can be allowed in a different period to that set out at s.394(2)(a) of the Act.

[8] Section 394(2) of the Act provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.

[9] The Applicant’s principal contention was that his application was not made within the stipulated time period for reason that he had a medical condition.

Consideration

(a) the reason for the delay

[10] The Applicant contended, in essence, that he was medically incapacitated in relation to making an application before such time as he did on 17 February 2014.

[11] The Applicant’s evidence of his medical condition was as follows:

• A radiological request form (dated 22 January 2014) relating to shoulder pain on the right shoulder;



• A document from Sullivan Nicolaides Pathology regarding a blood test relating to “common allergen” (dated 17 February 2014);



• A photocopy of the front of a box of Celebrex, which appears to be dated 1 February 2014.

[12] The Applicant has provided no evidence of a satisfactory kind which demonstrates that he was physically incapacitated or in such a medical condition that he was unable to make an application within the stipulated time period. The Applicant was unable to make out in exactly what manner he was incapacitated from making an application through any of the available means.

[13] Though he seemed largely content to rely on his evidence as it was, I nonetheless provided the Applicant with a further opportunity following the hearing to provide any further medical information he might be able to access to support his claim. To that end, the Applicant subsequently provided a further medical certificate only that read:

[..]

This is to confirm that Mr Jacob Dwyer has been consulting doctor at this surgery since Jan 2014.

He came here on 22.1.2014, 13.2.2014 and 17.2.2014 with left shoulder and back pain. He has had a few investigations and would need further investigation done.

He was given Celebrex for his muscle pain but had to stop due to the side effect.

Should any of the above need clarification, please feel free to contact me on telephone [..]

[14] Again, this was not evidence that the Applicant had been rendered incapable of making an application for unfair dismissal through any of the various means at his disposal, including telephone, (assisted) personal attendance at the Commission, by post, or online. Indeed, the Applicant himself claimed that he was carrying out some limited online social media activity over the period (but claimed this was different in its demands than making an application for an unfair dismissal remedy).

[15] There was other email material submitted that did not support a finding that the Applicant was at all times rendered dysfunctional in the post-employment period.

[16] The Applicant otherwise contended that:

“the delayed period was and still is very stressful and took a lot of courage to come forth when I have friends and people I respect to work as employees of the prospect group.” (sic)

[17] The Applicant added that his stress was exacerbated by having to deal with a solicitor (engaged by the Respondent) who had been “harassing” him (presumably since he had made this application).

[18] The Applicant, again, was unable to make out exactly in what way and to what actual extent these various stressors, as he alleged them to be, prohibited him from making an application for unfair dismissal within the stipulated time period.

(b) whether the person first became aware of the dismissal after it had taken effect

[19] No issue arises in respect of this matter. It is a matter of neutral consideration.

(c) any action taken by the person to dispute the dismissal

[20] Apart from this application there is no evidence of the Applicant having taken any other relevant steps to challenge his dismissal. This is a matter of neutral consideration as a consequence.

(d) prejudice to the employer (including prejudice caused by the delay)

[21] The Respondent did not reasonably contend that it would suffer a prejudice arising from the delay in dealing with the Applicant substantive application caused by the Applicant’s failure to comply with s.394(2)(a) of the Act. The matter is of a neutral consideration as a consequence.

(e) the merits of the application

[22] I have not had the opportunity to hear the merits of the application in the context in which I might in a substantive proceeding. It is enough to say that the employer contends that the Applicant was made redundant owing to operational circumstances, and further, that the redundancy was a case of “genuine redundancy” for the purposes of s.389 of the Act.

[23] Having not determined this matter I can only conclude that it bears in a neutral way upon my deliberations as a consequence.

(f) fairness as between the person and other persons in a similar position.

[24] No issue was raised in these proceedings that there was another person in relative circumstances and whose treatment should be taken into comparative account, or in any other respect.

Conclusion

[25] The Applicant has no substantive explanation for why his application is outside the stipulated time period. Nor do any of the circumstances to which he has alluded constitute exceptional circumstances, in any event.

[26] The application is therefore dismissed as it was not made in compliance with s.394(2)(a) of the Act and the pre-condition to exercising the discretion under s.394(2)(b) of the Act, to allowing the application in a different period (of time), is not made out (having taken into account the matters set out in s.394(3) of the Act).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Dwyer, Applicant

Mr G. Linton, of the Respondent

Hearing details:

By telephone

2014

4 April

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