Mr Jay Lackas v PJL Plumbing and Roofing Services

[2015] FWC 1195

[2015] FWC 1195

FAIR WORK COMMISSION

DECISION

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

Mr Jay Lackas
v
PJL Plumbing and Roofing Services
(U2014/16636)

COMMISSIONER ROE MELBOURNE, 19 FEBRUARY 2015

Unfair dismissal - extension of time for lodging application.

[1] Mr Lackas was employed as a full time apprentice plumber from 5 August 2013 until 10 November 2014. The business is run by Mr Little and the only employees were Mr Little and two apprentices. Mr Lackas was away ill from late April until October 2014 and during that period Mr Little hired the second apprentice. Mr Little’s father rang Mr Lackas on 4 November 2014 to tell Mr Lackas that he needed to look for other work, that he was not required to attend work that week, that there was not enough work for him and that Mr Little would ring him. Mr Little rang Mr Lackas on 10 November 2014 and terminated his employment due to lack of work. Mr Little continued to employ the other apprentice who had been engaged during the period of Mr Lackas’ recent illness.

[2] Mr Lackas took no action to challenge his dismissal prior to lodging the unfair dismissal application on 22 December 2014. The application is three weeks late. Mr Lackas says that during the period from 10 November 2014 until 29 November 2014 when he went overseas he was busy helping his father but has no other explanation as to why he did not take any action to lodge an unfair dismissal application. Mr Lackas was overseas on a holiday which had been planned prior to the termination from 29 November 2014 until 15 December 2014. Mr Lackas contacted the Fair Work Commission a few days after his return and then lodged the application a week after his return.

[3] Even taking into account that Mr Lackas is a twenty year old apprentice I am not satisfied that the reasons for the delay support the granting of an extension of time. The absence of any action during the period from the dismissal until his return from an overseas holiday also stands against a finding that exceptional circumstances exist justifying an extension of time.

[4] Mr Lackas was aware of the termination when it took place on 10 November 2014. This is a neutral factor. I am not satisfied that there would be any particular prejudice to the employer if the extension of time was granted. The period of delay is significant but not so significant as to cause an injustice or such that memories would be unreliable. A decision one way or another in this matter would not give rise to an issue of unfairness as between Mr Lackas and others in a similar situation.
[5] The lack of an adequate reason for what is a significant period of delay and the lack of action to contest the dismissal are factors which stand strongly against the finding of exceptional circumstances justifying an extension of time.

[6] The final matter I am required to consider is the merits of the application. I have not heard all the evidence in this matter. However, the parties agree upon the facts of the situation and only differ as to their perspective. Mr Lackas believes the termination was unfair because of its harshness, the absence of a fair process and the failure to consider retaining him in employment rather than the apprentice who had much more recently been employed. Mr Little says that his was a small business and that he was inexperienced in employment matters and that he made the decision to ensure the survival of his business. I consider that Mr Lackas’ case would have reasonable prospect of success. This is a factor which stands in favour of a finding that there are exceptional circumstances granting an extension of time.

[7] Considering all of the factors I am not satisfied that there are exceptional circumstances which justify the granting of an extension of time. The application is dismissed and an order to this effect will be issued.

COMMISSIONER

Appearances:

Mr J Lackas represented himself.

Mr P Little and Ms J Little appeared for the Respondent.

Hearing details:

2015

Melbourne

February 13

Printed by authority of the Commonwealth Government Printer

<Price code A, PR561219>