Mr Jeffrey Cuffe v Mls Electrical Pty Ltd T/A WV Cardell & Sons

[2010] FWA 9168

[2010] FWA 9168

FAIR WORK AUSTRALIA

DECISION

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

Mr Jeffrey Cuffe
v
MLS Electrical Pty Ltd T/A WV Cardell & Sons
(U2010/7633)

COMMISSIONER ASBURY BRISBANE, 29 NOVEMBER 2010

Termination of employment – jurisdiction – application lodged beyond time allowed.

Background

[1] On 25 February 210, Mr Jeffrey Cuffe was dismissed by MLS Electrical Pty Ltd trading as WV Cardell & Sons (MLS). On 1 April 2010, Mr Cuffe filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act). By virtue of s.394(2) of the Act, an application for an unfair dismissal remedy must be made:

(a) Within 14 days after the dismissal took effect; or

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

[2] On 22 April 2010, MLS filed a response objecting to Mr Cuffe’s application on the grounds that it was filed out of time, and that Mr Cuffe’s dismissal was consistent with the Small Business Fair Dismissal Code. The matter was listed for Directions on 10 June 2010. The parties were directed to file submissions and statements of evidence and a hearing was scheduled for 6 September 2010. Subsequently the parties indicated that no cross-examination of witnesses was required and the matter was determined on the basis of the material filed.

Evidence

[3] The reasons given by Mr Cuffe for the application being filed outside of the required time, can be summarised as follows. Mr Cuffe was depressed and upset following his dismissal. No medical evidence in relation to Mr Cuffe’s claim to be suffering from depression was produced. Mr Cuffe decided to take a few days off and travel to Sydney to visit his sister, to assist to lift him out of his depression. This was said to be at the suggestion of Mr Cuffe’s family who were concerned that he was depressed. Mr Cuffe also said that he was unaware of his legal rights with respect to the termination of his employment.

[4] Documentation appended to Mr Cuffe’s witness statement indicates that on 25 February 2010, after being dismissed, and prior to leaving MLS’s workplace, he sent an email to Mr Mark Seaton, the Owner/Manager of MLS, detailing a number of complaints in relation to unpaid wages. Those complaints relate to allegations of underpayment with respect to overtime, travel time, living away from home allowance, uniform allowance and payment at a higher rate upon completion of a Certificate III. The email goes on to state:

“...now since you have sacked me i believe i am entitled to a further payment in lieu of notice”.

[5] By email of 28 June 2010, MLS responded to Mr Cuffe’s email queries and in relation to payment in lieu of notice advised that Mr Cuffe was entitled to two weeks wages and that this would be paid with his final pay along with other entitlements and leave accruals.

[6] According to Mr Cuffe, on Monday 1 March 2010, he lodged what he believed to be an unfair dismissal claim with the Fair Work Ombudsman. A copy of that claim was not in evidence. Mr Cuffe then states that:

“I was not in Brisbane for the 14 day time period for lodgement of the application to Fair Work Australia as I had travelled to Sydney. I had missed the date for filing the documents required with Fair Work Australia and I received my first contact via Elouise Bonel, whilst in Sydney. When I returned to Brisbane on 19 March 2010, the letter from the Ombudsman dated 10 March was in my mail, at my old residence (parents house). This was one day before the 14 day time period was due to expire. At this point I realised I was out of the time frame for lodging the application documentation. I immediately telephoned the Ombudsman’s Office on 26 March 2010 after receiving further information I believed was going to be important to my case and to find out my next course of action. The lady I spoke to on the phone advised me that she would book me the first available appointment with Caxton Street Legal Services.

I attended this meeting on 31 March 2010. It was during this meeting that I was informed of my rights and as I stated in my lodgement of Form 2 - Application for Unfair Dismissal Remedy. Prior to this I did not know what my rights were and was only at this point I was informed that I could lodge a claim of Unfair Dismissal.”

[7] The letter from the Office of the Fair Work Ombudsman to Mr Cuffe, dated 10 March 2010 was also not in evidence.

[8] The Electrical and Communications Association, on behalf of MLS, provided a copy of a letter from the Office of the Fair Work Ombudsman to the Company, dated 10 March 2010. That letter states that a formal complaint has been made against MLS by Mr Cuffe in relation to his employment, and that the complainant alleges that the following matters remain unresolved:

• Penalty rates/overtime



• Not paid for time worked



• No payslips/issue with payslips



• Underpayment of hourly rate

Legislation

[9] Section 394(3) of the Act vests FWA with discretion to extend the time in s.394(2) for a person who is dismissed to make an application for an unfair dismissal remedy. FWA may allow a further period for the application to be made, 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.

Conclusions

[10] Mr Cuffe was required to make his application for an unfair dismissal remedy by 11 March 2010. The application was made on 1 April 2010, some 34 days after Mr Cuffe’s dismissal took effect and 20 days after the time allowed in s.394(2) of the FW Act.

[11] I am unable to accept that Mr Cuffe has provided evidence of exceptional circumstances such that an extension of time should be granted. There was no evidence of a medical diagnosis of depression. That Mr Cuffe and his family decided that a trip to Sydney to visit his sister would assist him to cope with the dismissal, does not constitute exceptional circumstances.

[12] There is no question that Mr Cuffe was aware of the dismissal on the date that it took effect and this consideration is not relevant in this case.

[13] Mr Cuffe did not take action to dispute the dismissal. The action that Mr Cuffe took was to dispute whether he had been paid a number of entitlements under the Award, including notice on termination of his employment. The only evidence of Mr Cuffe raising the issue of notice on termination of employment is found in the email he sent to Mr Seaton on 25 February 2010. That email does not raise the issue of unfairness with respect to Mr Cuffe’s dismissal and does not indicate that Mr Cuffe is disputing the dismissal.

[14] The substance of Mr Cuffe’s complaint to the Fair Work Ombudsman is not in evidence. There is no evidence that Mr Cuffe raised the issue of his dismissal or the issue of whether he had been paid notice on termination of his employment, with the Fair Work Ombudsman. The letter from the Fair Work Ombudsman to MLS dated 10 March 2010, makes no mention of either of these matters. It can be inferred that by that date Mr Cuffe was not pursuing payment of notice, because it had already been made.

[15] It is also the case that the Office of the Fair Work Ombudsman responded to Mr Cuffe’s complaint before the date upon which time to make an application for an unfair dismissal remedy expired. This can be contrasted with the facts in Upsall v Dentay Pty Ltd T/A Taylor Groenlund & Doan Dental Surgery 1 the case cited by Mr Cuffe in support of his application for an extension of time. In that case it was noted that the response to the applicant from the Office of the Fair Work Ombudsman was belated, and on receiving it the applicant acted in a reasonable time frame to file her application. In the present case, the Office of the Fair Work Ombudsman responded to Mr Cuffe’s complaint within the fourteen day time frame in which he was required to file an application for a remedy for unfair dismissal. That Mr Cuffe did not receive the response until some nine days after it was forwarded to him was because he chose to visit his sister in Sydney, rather than to pursue the matter of a remedy for unfair dismissal. Mr Cuffe said that the letter was sent to him at his parents’ address, and that he received it upon his return from Sydney. There was nothing to indicate that this was not the address provided to the office of the Fair Work Ombudsman by Mr Cuffe or that the letter had been misdirected.

[16] Having received the response from the Office of the Fair Work Ombudsman on 19 March 2010, Mr Cuffe did not act within a reasonable time frame to make an application for an unfair dismissal remedy. Despite returning from Sydney on 19 March 2010 and receiving the letter from the Fair Work Ombudsman on that date, Mr Cuffe did not contact the Office of the Fair Work Ombudsman until 26 March 2010. This delay was not explained. The lack of explanation is significant given that Mr Cuffe also said that he realised on 19 March 2010, when he received the letter from the Office of the Fair Work Ombudsman, that the time for filing an application for a remedy for unfair dismissal had already lapsed.

[17] I do not accept that it was reasonable that Mr Cuffe waited until he met with a legal service before making his application for an unfair dismissal remedy. The application filed with Fair Work Australia is hand written, and it is not apparent that Mr Cuffe has obtained the assistance of a legal service to prepare it. There is no apparent reason why the application could not have been made immediately upon Mr Cuffe being aware that the time limit had expired.

[18] There is no evidence of any prejudice to MLS if the extension of time is granted, other than that which is created by the need to defend an unfair dismissal application, regardless of whether it is filed within the required time.

[19] The question of whether the dismissal of Mr Cuffe was consistent with the Small Business Fair Dismissal Code is contested, and on the material before me, I am unable to make any finding concerning the merit of the application, particularly given that it was not sought on behalf of MLS, to cross-examine Mr Cuffe.

[20] There is nothing before me which makes the question of fairness between Mr Cuffe and other persons in a like position, relevant. Accordingly, this consideration is not relevant to the decision in this case.

[21] Before the discretion to extend time to file an application for an unfair dismissal remedy will be exercised, Fair Work Australia 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 for the delay which makes it equitable to extend. 2

[22] The onus is on Mr Cuffe to establish that there are exceptional circumstances that would justify a further period of time being allowed to file an unfair dismissal claim. I am unable to accept that Mr Cuffe has established that this is the case. Mr Cuffe’s application for a further period of time to apply for an unfair dismissal remedy is refused. The application in U2010/7633 is dismissed. I Order accordingly.

COMMISSIONER

Final written submissions:

7 July 2010.

 1   [2009] FWA 1899.

 2   Brodie-Hanns v MTV Publishing [1995] 67 IR 298 at 299.

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