Mr Liam Kearney v Shanahan Freight Services T/A Andrews Airport Parking Qld

[2014] FWC 2677

[2014] FWC 2677

FAIR WORK COMMISSION

DECISION

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

Mr Liam Kearney
v
Shanahan Freight Services T/A Andrews Airport Parking QLD
(U2014/4394)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 30 APRIL 2014

Summary: unfair dismissal remedy - extension of time.

[1] On 7 February 2014, Mr Liam Kearney (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy in relation to his dismissal by Shanahan Freight Services T/A Andrews Airport Parking Qld (“the employer”).

[2] The matter did not proceed to substantive hearing for reason that the employer objected to the Fair Work Commission (“the Commission”) further dealing with the matter until such time as it was determined whether the application was compliant with the requirements of s.394(2) of the Act.

Legislative context

[3] Section 394 provides relevantly as follows:

394 Application for unfair dismissal remedy

[...]

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) 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. [My emphasis]

Evidence

(a) the reason for the delay

[4] The application was made some 83 days outside of the time limit prescribed by s.394(2)(a) of the Act.

[5] The Applicant contended that the reason for the delay in making his application was that (subsequent to the dismissal) he was advised to make an application (“the prior application”) under the general protections provisions of the Act by, at least, one community legal service provider.

[6] This application was made in accordance with the relevant timeframe and subsequently subject to conference convened by the Commission on 9 January 2014.

[7] There was no resolution of the application at that conference and consequently a certificate under s.369 of the Act was issued (later that same day) by the Commission.

[8] The Applicant then considered taking the application further. It appears that the Applicant then had discussions with a legal representative and was fully informed as to the cost of proceeding.

[9] The Applicant claimed to have been surprised by the costs as they were presented to him.

[10] The Applicant was given confirmation of the costs by e-mail on 15 January 2014.

[11] He contends that a week or two later (as his evidence came to be) he decided to make an unfair dismissal application under s.394 of the Act (“the current application”).

(b) whether the person first became aware of the dismissal after it had taken effect

[12] The Applicant contended that this was not a consideration of any relevance to his application.

(c) any action taken by the person to dispute the dismissal

[13] The Applicant had made two applications disputing the circumstances of his dismissal. One of these was under the general protections provisions (that being the prior application) along with this current application.

(d) prejudice to the employer (including prejudice caused by the delay)

[14] The employer gave evidence that at least one of its employees (who would likely be a witness to he substantive matter) had ceased to be an employee since the dismissal of the Applicant, and that this may cause difficulties should be application allowed in another period of time other than that stipulated at s.394(2)(a) of the Act.

[15] The employer also gave evidence that another employee had also ceased to be an employee and that this too may give cause to difficulties in mounting its defence against the claim. But in this particular respect, it appears as though the employee had ceased to be an employee a short period prior to the dismissal of the Applicant.

(e) the merits of the application

[16] The merits of the application have not been ventilated, as would be expected in a proceeding of this kind. The merits of the application therefore bear neutrally upon my deliberations in this matter.

(f) fairness as between the person and other persons in a similar position

[17] The Applicant did not advance any circumstances in which I should compare the fairness as between him and any other persons.

Conclusion

[18] The reason for the delay in making the application was that the Applicant was surprised at the cost of proceeding following his general protections application, and decided to elect to make a new application seeking an unfair dismissal remedy.

[19] This reason cannot be characterised as constituting an exceptional circumstance.

[20] The Applicant was formally advised by a legal practitioner on 15 January 2014 of the costs of proceeding and the Applicant subsequently decided to make an application for an unfair dismissal remedy.

[21] The Applicant was provided the advice on 15 January 2014, as stated above, but he did not make the current application to the Commission until 7 February 2014.

[22] The delay - at the very least- between being given the advice on costs on 15 January and making the application on 7 February 2014 - is without reasonable explanation.

[23] None of the other circumstances relevant to this case for the purposes of s.394(3)(b),(c), (d), (e) or (f) of the Act support a finding that there are any exceptional circumstances that should enliven my discretion under s.394(2)(b) of the Act. The conclusion is no different if I take those matters in aggregate with the evidence provided for purposes of s.394(3)(a) of the Act.

[24] Thus, even if I were to accept that the Applicant was advised to pursue a course of action under s.365 by a community legal service provider, and that application was ill-advised and had no reasonable prospect of success, the Applicant’s case could not be successful, regardless.

[25] On that very issue, I note that there is no argument that the community legal service provider provided wrong advice and the application was misdirected for that reason. Indeed, the only evidence before me is that the prior application proceeded in an ordinary manner and was only abandoned for reason of costs. The Applicant cannot therefore claim to have been mislead by his legal advisor: he has merely elected to seek relief in a lower cost forum as a matter of election. These are not exceptional circumstances that in some manner characterise the delay in making the application.

[26] Additional issues arise as to whether the Applicant had ever discontinued his application under s.365 of the Act such that the application under s.394 of the Act could be made.

[27] But that last point aside, for the reasons I have given the discretion vested in the Commission at s.394(2)(b) of the Act is not enlivened.

[28] The application under s.394 of the Act therefore must be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr L. Kearney, Applicant

Ms L. O’Callaghan, of the Respondent

Hearing details:

By telephone

2014

22 April

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