Mr Joseph Adams v Monadelphous Engineering T/A Monadelphous

[2012] FWA 10468

[2012] FWA 10468

FAIR WORK AUSTRALIA

DECISION

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

Mr Joseph Adams
v
Monadelphous Engineering T/A Monadelphous
(U2012/13097)

DEPUTY PRESIDENT HARRISON NEWCASTLE, 12 DECEMBER 2012

Application for unfair dismissal remedy - application re extension of time - extension of time refused - application dismissed.

[1] Mr Joseph Adams (the Applicant) was employed by Monodelphous Engineering Pty Ltd (the Employer) from 14 October 2011 to July 2012 as a Superintendent.

[2] This application was lodged on 10 September 2012.

[3] The letter of termination is dated 23 July 2012; however, Mr Adams asserts that the relevant date of termination of his employment is 27 July 2012. Mr Adams was paid four weeks pay in lieu of notice.

[4] Section 394(2)(a) of the Fair Work Act 2009 (the Act) requires that an application must be made within 14 days of the date of dismissal. This application is then 31 days out of time by reference to 27 July 2012.

[5] Section 394(2) affords discretion to Fair Work Australia (FWA) to admit an application out of time subject to the consideration in s.394(3) which states:

(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.

Reason for the Delay

[6] Mr Adams put that the delay in lodging his application was due to obtaining legal advice, then a period of hospitalisation for almost a week from complications arising from surgery in 2008.

[7] Mr Adams submitted that on discharge from hospital he completed the application form as soon as he was able and it was not until he submitted the form that he became aware of the 14 day time limit.

[8] The reasons for delay advanced by Mr Adams do not support a finding of exceptional circumstances. Ignorance of the statutory time limit is not an exceptional circumstance. The period of hospitalisation does not explain the full period of delay, rather a small portion, and accordingly does not provide excuse on the basis of exceptional circumstances.

[9] In respect to s.394(3)(c) of the Act there is no evidence of any action taken to dispute the termination. The Employer submitted that it did not become aware that the termination was disputed until service of this application on 5 October 2012.

[10] In respect to s.394(3)(d) the Employer submits that since the termination of Mr Adams’ employment it has restructured its business and would suffer prejudice due to the delay.

[11] I find in favour of the Employer on this point.

[12] In respect to s.394(3)(e) Mr Adams was dismissed as a consequence of leaving a company support vehicle bogged alongside a river overnight after he used the vehicle to pull another vehicle out of the bog. The river rose during the time the vehicle was there, causing it to be written off.

[13] The Employer further asserts that Mr Adams failed to notify it of the event for a period of a few days. Mr Adams cites communication difficulties, which are disputed.

[14] The circumstances do not lead to a conclusion that the merits of the application support a finding of exceptional circumstances.

[15] In respect to s.394(3)(f) Mr Adams submits that the Employer’s objection was not received until 2 October 2012, which is beyond the seven days required by the Notice to Respondents on FWA’s Form F2 Application for Unfair Dismissal Remedy.

[16] This misconceives the test of fairness between persons in the same position.

[17] The test of exceptional circumstances is a most stringent test. Mr Adams has failed to establish exceptional circumstances in this matter.

[18] An extension of time is refused and the application is dismissed.

DEPUTY PRESIDENT

Hearing details:

Decision on papers

Written submissions:

16 November 2012 (Applicant)

30 November 2012 (Respondent)

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