Mr Mark Hayes v MJ Cairns Constructions Pty Ltd

[2014] FWC 6026

[2014] FWC 6026

FAIR WORK COMMISSION

DECISION

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

Mr Mark Hayes
v
MJ Cairns Constructions Pty Ltd
(U2014/6055)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 SEPTEMBER 2014

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

[1] Mr Mark Hayes 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 M J Cairns Constructions Pty Ltd. Mr Hayes states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 5 March 2014 and that it took effect on that date. The application was made on 31 March 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 Hayes’ application was made seven days outside the time required in s.394(2). It is 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 Hayes 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. The Respondent has indicated that it wishes to cross-examine Mr Hayes with respect to his statement. For reasons which will be apparent, it is not necessary to hold a hearing for this purpose and I have determined the matter on the basis of the material on the file.

[6] The reason given by Mr Hayes for the delay in making his application is that he was looking for other jobs. Mr Hayes further states that he was told that the reason for his dismissal was that there was no work available and it was not until a later and unspecified date, that he found that the Respondent was “still working”. In relation to when he first became aware of the dismissal, Mr Hayes states that although he was told that he was dismissed on 5 March 2014, it was not until he received a phone call about his dismissal that he fully understood what had occurred and that he had been unfairly dealt with. No further information in relation to this assertion is provided.

[7] Mr Hayes states that he took no action to dispute his dismissal at that time it was effected because he genuinely believed that the Respondent was out of work. In relation to merit, Mr Hayes states that he was employed for three years and six months, and is entitled to redundancy pay for his unfair dismissal equal to eight weeks pay.

[8] The Respondent’s submissions indicate that it is a civil drainage company and subcontracts for the provision of stormwater and water reticulation services. The contracts are short term ranging from one week to a few months and crews are formed when a contract has been won. Contracts are won and lost on a regular basis and staff are hired and dismissed on a regular basis due to ordinary and customary turnover of labour, if further contracts are not won to enable them to work on new jobs.

[9] In January 2014 the contract that Mr Hayes was then working on was completed and he was temporarily moved to other job sites which had established crews, in order to keep him employed. When the Company did not win new work, Mr Hayes was given five weeks’ notice of the termination of his employment. The Respondent expected that Mr Hayes would work out that period of notice but he did not do so, and returned all Company property on 6 March 2014.

[10] I do not consider that Mr Hayes has established that there are exceptional circumstances so that the discretion to allow him an additional period to file his application should be exercised. There is nothing exceptional about the reasons he gives for his failure to file his application within the required time. That he was applying for jobs is not an exceptional circumstance. There is also insufficient evidence about whether Mr Hayes was misled about the reasons for his dismissal. The fact that the Respondent was still performing work on other contracts is not evidence that there was work for Mr Hayes. If Mr Hayes was misled he does not state when he became aware that he had been provided with incorrect information about the status of the Respondent.

[11] There is no evidence that Mr Hayes was not aware of the dismissal when it took effect. To the contrary he states in his Form F2 application that he was notified that he was dismissed on 5 March 2014 and that the dismissal took effect on that date.

[12] There is no indication that Mr Hayes took any step to dispute his dismissal and he concedes that this is the case. The Respondent has pointed to no prejudice if the further period is allowed and this is not a determinative factor. There is no indication that the application has merit to the extent that it is a factor in weighing whether the discretion to allow a further period for the application to be made should be exercised. Further, it appears that Mr Hayes is seeking redundancy payments. If he has an entitlement to such payments, then that is not a remedy that he can achieve by pursing an unfair dismissal application.

[13] In the absence of exceptional circumstances, it would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application, to allow a further period for Mr Hayes’ application to be made.

[14] For these reasons, I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Mr Hayes’ application to be made should be exercised. Mr Hayes’ application for an unfair dismissal remedy U2014/6055 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 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].

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