Mr Karl Ladd v Qube Logistics (Qld) Pty Ltd

[2014] FWC 7771

[2014] FWC 7771

FAIR WORK COMMISSION

DECISION

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

Mr Karl Ladd
v
Qube Logistics (QLD) Pty Ltd
(U2013/16361)

DEPUTY PRESIDENT ASBURY BRISBANE, 31 OCTOBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

[1] Mr Karl Gordon Ladd applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by Qube Logistics (QLD) Pty Ltd. Mr Ladd states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 16 October 2013 and that it took effect on that date. The application was made on 29 November 2014.

[2] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Mr Ladd’s application was made 23 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period if the FWC 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Ladd to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Mr Ladd did not comply with the Directions.

[6] Notwithstanding Mr Ladd’s failure to comply, Qube Logistics has provided material in the form of a Statutory Declaration made by Mr Darren Fuller, Transport Manager. Mr Fuller states that Mr Ladd was employed as a casual employee driving a number of different vehicles as required. Mr Ladd was informed, along with other casual employees, that his services were not required in the foreseeable future, due to a downturn in business. Mr Fuller further states that Mr Ladd is still on the Company’s data base as an available driver and has not been dismissed.

[7] Given Mr Ladd’s non-compliance with the Directions and his failure to communicate with the Commission in relation to his reasons for that non-compliance, I have determined the matter on the basis of the material on the file.

[8] In his Form F2 Application for an unfair dismissal remedy, Mr Ladd provides no information about his failure to make his application within the required time. Attached to the application is a medical certificate in the following terms:

“This is to confirm that Karl Ladd ... suffered significant distress following his recent termination of employment. He suffers with Diabetes Mellitus, Hypertension and Dyslipidemia and is taking multiple regular medications for these conditions and the additional loss of employment placed further financial strain on Karl...”

[9] The only other information provided by Mr Ladd was a covering email forwarded with his application stating that he did not know about the 21 days; he is not “computer friendly” and has “been not with it” since his dismissal.

[10] On the basis of the material before me, I am unable to be satisfied that there are exceptional circumstances such that the discretion to allow a further period in which to make an unfair dismissal application should be exercised in favour of Mr Ladd. There is nothing exceptional about the reasons he provides for the delay in making his application. Many employees who are dismissed suffer significant distress and still manage to make an unfair dismissal application within the required time. The medical certificate provided by Mr Ladd does not assert that he had any medical condition preventing him from making his application within the required time.

[11] Mr Ladd was clearly aware of his dismissal and the date upon which it took effect. Other than filing his application, there is no evidence that Mr Ladd took any action to dispute his dismissal. In relation to the merits of the application, there is a further impediment to the application proceeding on the basis that the Respondent asserts that Mr Ladd was not dismissed. Even if this argument is not accepted, Mr Ladd was a casual employee and it is asserted that along with other casual employees he was not able to be given work due to a downturn in business. There is no indication that the merits of the application are such that this factor outweighs a significant delay in making the application without adequate reasons, particularly in circumstances where Mr Ladd has not complied with Directions and has provided no explanation for his failure to do so.

[12] Qube Logistics has not pointed to any prejudice as a result of the delay. In relation to the issue of fairness between Mr Ladd and other persons in a like position, to allow a further period in circumstances where there has been a failure to comply with Directions; there is no adequate explanation for the delay; and no exceptional circumstances, would be unfair to the many applicants who have been refused extensions.

[13] For these reasons, I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Mr Ladd’s application to be made should be exercised. Mr Ladd’s application for an unfair dismissal remedy U2013/16361 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Final written submissions:

20 March 2014.

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR557282>