Mr John Carruthers v Worth Recycling Pty Ltd

[2015] FWC 4859

[2015] FWC 4859

FAIR WORK COMMISSION

DECISION

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

Mr John Carruthers
v
Worth Recycling Pty Ltd
(U2015/5043)

COMMISSIONER JOHNS SYDNEY, 17 JULY 2015

Application for relief from unfair dismissal - whether to extend time for lodging the application – application not out of time.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This matter proceeded as a jurisdictional hearing (an application for an extension of time) in circumstances where:

a) the applicant, John Carruthers (Applicant):

i. lodged an application for an unfair dismissal remedy on 21 April 2015 in respect of the termination of his employment by Worth Recycling Pty Ltd (Respondent/Employer);
ii. indicated in his application that the termination occurred on 26 March 2015; and

b) it appeared that the application was made 4 days after the 21 day period allowed for the making of an unfair dismissal application.

The jurisdictional objection

[3] On 27 April 2015 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because the Applicant was not dismissed. The Respondent indicated that the Applicant,

“is still an employee on our wages books, with a current Employment Contract as a Casual Labourer.” 3

[4] Based on the information contained in the Applicant’s application for an unfair dismissal remedy the Commission formed the view that the proper jurisdictional objection was that the application is out of time.
[5] On 1 May 2015 the Commission invited the Applicant to provide a written statement explaining why he thought the Commission should extend the time for his application to be lodged.
[6] On 15 May 2015 the Applicant responded as follows:

“The Applicant only realised that the Respondent did not intend to provide him with any employment after several weeks of telephoning the Respondent and being provided with no work and when, on or around 13 April 2015 he was told that his application for a Driver position was rejected.”

The jurisdictional hearing
[7] A jurisdictional hearing commenced on 12 June 2015.
[8] At the hearing the Applicant was represented (with permission pursuant to section 596(2)(a) of the FW Act) by Gary Pinchen. There was no attendance by the Respondent.
[9] At the jurisdictional hearing the Applicant:

a) handed up submissions (Exhibit A1);
b) affirmed the correctness of a witness statement tendered by him (Exhibit A2);
c) provided the Commission with copies of:

i. text message exchanges between him and a representative of the Respondent in which the Applicant made inquiries about work with the Respondent (Exhibit A3);
ii. a text message from Craig Hall dated 15 April 2015 (Exhibit A4) which read,

“Thank you for your interest in the NDD operators role. Unfortunately you have been unsuccessful…”

[10] After the jurisdictional hearing a copy of the transcript and each of the exhibits where provided to the Respondent. Directions were issued that,

“by 4.00 pm on Friday, 3 July 2015, the Respondent must file in the Commission and serve on the Applicant any submissions, witness statements or materials it wants the Commission to consider in reply to the material contained in the transcript and [the] Exhibits..”

[11] The Respondent did not file any materials by 4.00 pm on Friday, 3 July 2015.
[12] Consequently, the Commission, as presently constituted has decided to determine the matter on the basis of the only evidence before it; that being the evidence received during the jurisdictional hearing on 12 June 2015.
Findings of fact
[13] The Commission, as presently constituted, finds that:

a) In or about May 2006 the Applicant commenced work with the Respondent as a truck driver;
b) For almost a year up to 26 March 2015 the Applicant was working as a casual employee undertaking yard duties;
c) In March 2015 the Applicant indicated to representatives of the Respondent that he would be able to resume his duties as a truck driver;
d) On 26 March 2015 the Transport Manager of the Respondent, Tony Wilson, advised the Applicant that he did not have work for him as a truck driver;
e) The Applicant was not advised that his yard duties would cease;
f) Between 30 March and 15 April 2015 the Applicant:

i. made numerous attempts to clarify the status of his employment;
ii. was not rostered to perform any work;

g) In April 2105 the Applicant applied for an internal driver position with the Respondent;
h) On 15 April 2015 the Applicant was advised that his application for the internal driver position was unsuccessful;
i) Despite claiming in its reply to the unfair dismissal application (dated 27 April 2015) that the Applicant had not been dismissed, the Respondent has not rostered the Applicant for any work since 26 March 2015.

[14] Having regard to the above findings of fact, the Commission, as presently constituted, further finds that the effective date of termination of the Applicant’s employment was 15 April 2015.

Conclusion

[15] For the reasons set out above, the Applicant’s application for an unfair dismissal remedy (lodged on 21 April 2015) is not out of time.
[16] The matter will now be referred to the Unfair Dismissals Case Management Team for further programming.

COMMISSIONER

Appearances:

G Pinchen for the Applicant

No attendance for the Respondent.

Hearing details:

2015.

June, 12

Sydney.

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3   Employer Response to Unfair Dismissal Application, item 1.3.

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