Mr John Peter Henry v J B Cummings
[2009] FWA 889
•30 OCTOBER 2009
[2009] FWA 889 |
|
DECISION |
Fair Work Act 2009
s.643 – Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
v
J B Cummings
(U2009/11570)
COMMISSIONER WILLIAMS | PERTH, 30 OCTOBER 2009 |
Termination of employment – extension of time.
Introduction
[1] This decision follows an application made pursuant to s.643 of the Workplace Relations Act 1996 (the Act) by Mr Henry (the applicant) who sought relief following his termination of employment by J B Cummings (the respondent) by letter dated 9 February 2009.
[2] The application was filed in the Australian Industrial Registry on 26 August 2009.
[3] Section 643(14) of the Act prescribes:
“An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days”
[4] This application was filed approximately six months after the time limit prescribed in the Act had passed.
[5] The applicant has requested that the Commission exercise its discretion under s.643(14) of the Act to extend the time for filing this application.
[6] In response, the respondent has indicated that it objects to an extension of time for lodging of the application and objects to conciliation before determination of the application to extend time. The respondent has also lodged a number of Notices of Motion to Dismiss the application on other grounds.
[7] As a consequence I wrote to the applicant and respondent in identical terms explaining the situation as set out above and further explaining that pursuant to s.648(2) of the Act I had decided not to hold a hearing and that the applicant and respondent were invited to provide further information that related to whether the extension of time should be granted by the Commission.
Submissions
[8] The applicant has provided a significant amount of information to the Commission in support of his application. In response to the invitation he has provided a further large amount of information.
[9] The respondent’s representatives by letter submit that the material supplied by the applicant is insufficient to establish any grounds for the Commission to extend time nor does it have jurisdiction to deal with the matter (no explanation for this submission was given). The respondent’s representatives submit that the applicant has exercised his rights and had the matter determined in NSW and been in receipt of Workers Compensation and had been legally represented at the time. No further detail as to what this submission refers to was provided.
[10] From the information provided by the applicant it seems that Mr Henry alleges he was the victim of an assault in his workplace in 2004. Following this he has been involved in proceedings in the Workers Compensation Commission of NSW including an attempted appeal of an Arbitrators Decision. Mr Henry has also pursued a complaint against a solicitor that had represented him and an Arbitrator from the Workers Compensation Commission of NSW with the Workers Compensation Commission of NSW. These complaints also appear to have then been taken up with the Office of the Legal Services Commissioner in NSW. In addition Mr Henry has pursued a complaint with the Police Commissioner of NSW. Mr Henry has also initiated complaints to the then Office of Workplace Services against the respondent regarding alleged breaches of industrial instruments.
[11] Mr Henry has explained his grievances in detail. However it is difficult to discern from all the information that has been provided by Mr Henry that which is specifically relevant to the application he has made for an extension of time within which to make this application.
The Extension of Time Application
Principles
[12] The decision of Mr Justice Marshall of the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd 1sets out relevant principles for the Commission when considering whether or not to extend the time within which an application may be lodged. These principles where summarised as follows by Marshall J at 299:
(1) Special circumstances are not necessary but the Court 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) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.
Conclusions
[13] The onus in a matter such as this is on Mr Henry to put relevant information to the Commission which when applying the above principles would persuade the Commission to allow the extension of time.
[14] I have considered the information that has been provided to the Commission by Mr Henry and by the respondent. In all the circumstances I am not satisfied that there was an acceptable explanation for the delay in this instance. I do however find that Mr Henry did actively contest his termination. I find that there is no known prejudice to the respondent should a grant of an extension of time occur.
[15] On the issue of the merit of Mr Henry’s substantive application it is important to note that it is well established that there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application such as this for an extension of time for lodgement. In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice 2.
[16] Clearly the parties do not agree on the merits of the application, consequently I find that the issue of merit cannot be determined at this point so it is a neutral consideration.
[17] The question of the consideration of fairness between the applicant and other persons in a like position is not relevant in this instance.
[18] Accordingly, applying the principles set out in Brodie-Hanns v MTV Publishing Ltd, 3 and making an overall judgment as to the appropriateness of extending the time for lodgement I am not satisfied that I should exercise my discretion in favour of allowing the extension of time.
[19] This application has been lodged out of time. The application is not properly before the Commission and so must be and is dismissed.
COMMISSIONER
1 (1995) 67 IR 298
2 Kyvelos v Champion Socks Pty Limited, Print T2421 at pn 14, 10 November 2000, Giudice J, Acton SDP, Gay C
3 (1995) 67 IR 298
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