Mr James Taylor Bannon v Hellenic Club of Canberra Limited T/A Hellenic Club of Canberra Limited

[2011] FWA 4379

[2011] FWA 4379

FAIR WORK AUSTRALIA

DECISION

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

Mr James Taylor Bannon
v
Hellenic Club of Canberra Limited T/A Hellenic Club of Canberra Limited
(U2011/7433)

COMMISSIONER DEEGAN PERTH, 8 JULY 2011

Termination of employment - jurisdictional objections - extension of time.

[1] On 29 April 2011 Mr James Bannon (the applicant) lodged, pursuant to s.394 of the Fair Work Act 2009 (the Act), an application for unfair dismissal remedy in relation to the termination of his employment by the Hellenic Club of Canberra Pty Ltd (the employer).

[2] On 27 May 2011 the employer’s representative, Mr S. Harris of the ACT Chamber of Commerce, lodged a Response to Application for Unfair Dismissal Remedy noting that the applicant had been a casual employee who had been employed for less than the minimum term required under s.383(a) of the Act and that the application had not been made within 14 days of the date on which the dismissal took effect as required by s.394(2) of the Act.

[3] Directions were issued on 6 June 2011 requesting the filing of written submissions and supporting evidence in respect of the jurisdictional issues. Documentation was filed by both parties in accordance with those directions. On 1 July 2011 the applicant was given a further opportunity to more comprehensively address his reasons for filing the application more than 14 days after the dismissal took effect. He responded on 4 July 2011. The employer was then given an opportunity to respond to the further submissions lodged by the applicant in support of his request that time be extended for the lodgement of the application. These submissions were received on 5 July 2011.

[4] Having received the written submissions and supporting documentation I determined to decide the matter on the papers and that no hearing of the matter was required.

[5] Section 394 of the Act provides as follows:

394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when FWA 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 14 days after the dismissal took effect; or

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

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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] There appears to be no dispute between the parties that:

• the applicant was employed as a casual bar attendant by the employer between 27 July 2009 and 29 May 2010, and then again between 3 September 2010 and 13 December 2010;



• on 4 December 2010 the applicant informed the employer that he would be unavailable for work from 14 December 2010 until 4 February 2011;



• from 4 February the applicant made a number of enquiries about when he would again be rostered for work;



• on 18 and 22 February 2011 the applicant contacted the employer by email to follow up his verbal enquiries concerning when he would be allocated further shifts;



• on 25 February 2011 the applicant was advised by email that it was the employer’s policy to terminate the employment of any casual employee who had not performed any shifts for a period in excess of two months and that, as his last shift had been performed on 13 December 2010, his employment had been terminated; and



• the applicant responded on 28 February 2010 indicating that he had been unaware of the policy, had provided notice of his absence and requested to be returned to the roster.

[7] It is apparent from the undisputed facts that on 25 February 2011 the applicant was made aware that his employment with the employer had been terminated. The applicant lodged his application for an unfair dismissal remedy on 29 April 2011, 63 days after he was made aware that his employment had been terminated.

[8] By his further submissions of 4 July 2011 the applicant indicated that his reasons for not filing his application within the 14 day time limit mandated by the legislation were:

• Confusion as to whether he had been dismissed;



• Lack of further communication from the employer following his email in response to the employer’s email of 25 February 2011;



• The time required to understand advice from the Fair Work Ombudsman and Fair Work Australia;



• A short period of depression and anxiety;



• The complexities of the relevant legislation and lack of assistance;



• Pressure of university studies; and



• Finding alternative employment.

[9] In response to the applicant’s further submissions the employer noted the information available on the websites of the FWO and FWA concerning applications relating to termination of employment and suggested that an individual undertaking tertiary studies should have had little difficulty understanding the information provided. The employer’s submission also noted that no medical evidence concerning the applicant’s depression or anxiety had been provided and that the applicant had been able to continue with his studies and seek alternative employment at the relevant time despite claiming to have been affected by these conditions.

[10] I have considered the question whether a further period should be allowed for the lodgement of this application in light of those matters set out in s.394(3) of the Act. It should be noted that the applicant was requested to address these matters in his further submissions and took that opportunity.

[11] I do not accept the applicant’s reasons for his delay in filing the application. He was clearly put on notice on 25 February 2011 that his employment had been terminated at the very least as at that date. His application was not filed until more than 2 months later and more than 6 weeks after the expiration of the 14 day period allowed under the legislation for filing an application for unfair dismissal remedy. I accept the employer’s submission that a person undertaking tertiary studies should have had little difficulty obtaining and understanding the information required to lodge the application within the time period allowed. I am not satisfied that any period of anxiety or depression the applicant may have suffered affected his ability to take the necessary action to lodge an application within the time period allowed.

[12] I have taken into account that the applicant was not made aware of the dismissal until after it had taken effect, but I note that he did not file his application until more than 14 days after the day upon which he became aware that his employment had been terminated.

[13] Nothing provided by the applicant suggested he took any action to contest his dismissal with the employer after his email of 28 February 2011 and prior to the lodgement of the application on 29 April 2011.

[14] The employer claimed no prejudice resulting from the delay in filing the application.

[15] On the information provided I am unable to conclude that the application is without merit but make no further finding on this matter.

[16] The matter of fairness as between the applicant and other persons in a similar position is of little relevance to my decision in the circumstances of this case.

[17] Taking all the matters set out in s.394(3) into account I am not satisfied that there are exceptional circumstances in this matter such that I should allow further time for the filing of the application.

[18] As I have decided not to allow further time for the filing of the application it is unnecessary for me to deal with the remaining jurisdictional objection, that the applicant had not worked for the minimum employment period specified in s.383(a) of the Act in order to qualify as a person who is protected from unfair dismissal under s.382 of the Act.

[19] The application is dismissed.

COMMISSIONER

Written submissions:

Respondent: 14 June and 5 July

Applicant: 1 July and 4 July

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