Mr Mark Jordan v Royal Society for the Prevention of Cruelty to Animals Western Australia Inc. T/A RSPCA WA

[2014] FWC 2412

[2014] FWC 2412

FAIR WORK COMMISSION

DECISION

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

Mr Mark Jordan
v
Royal Society for the Prevention of Cruelty to Animals Western Australia Inc. T/A RSPCA WA
(U2014/4594)

DEPUTY PRESIDENT MCCARTHY PERTH, 10 APRIL 2014

Application for relief from unfair dismissal.

[1] This matter concerns an Unfair Dismissal Application (the Application) lodged by Mr Mark Jordan (the Applicant) asserting that he was dismissed from his employment with the Royal Society for the Prevention of Cruelty to Animals Western Australia Inc. T/A RSPCA WA (the RSPCA) unfairly. The Application was lodged on 12 February 2014 and states that the dismissal took effect on 14 January 2014. The Application was therefore lodged outside the time allowed by the Fair Work Act 2009 ( the FW Act) [see s.394(2)].

[2] The Applicant stated in the application that:

“When I was first dismissed from my employment as a young casual worker, I did not realize that I had any rights with me being a casual worker. I then got some advice and was informed that I may be able to take this further. I requested my dates of employment from RSPCA WA approx. 2.5 weeks ago so that I could try and proceed with some sort of action over this. I supplied my email address and was informed that the information I required would be sent to me immediately. I did not receive anything from them. I waited and then again contacted them requesting the information and was informed that it would again be sent out via email and it would also be posted to my home address. I have now today 12/02/14 received via postage the dates I required for this application and also a letter stating the reasons for their decision to terminate my employment. Both these documents are dated 14/01/14; however the postmark on the envelope is 11/02/14. This is the only correspondence I have received from them.”

[3] I wrote to the Applicant on 13 March 2014 requesting that he respond to those items I must have regard to in s.394(3) of the FW Act. The Applicant responded by email that day in the following terms:

“When I was first dismissed from my employment as a young casual worker, I did not realize at that time that I had any rights at all with me being a casual worker. I then received some advice and was informed that I may be able to take this further. I requested my dates of employment from RSPCA WA so that I could try and proceed with some sort of action over this. I supplied my email address and was informed that the information I required would be sent to me immediately. I did not receive anything from them. I waited and then again contacted them requesting the information and was informed that it would again be sent out via email and it would also be posted to my home address. I received via postage on 12/02/14 the dates I required for this application and also the letter stating the reasons for their decision to terminate my employment. Both these documents are dated 14/01/14; however the postmark on the envelope is dated 11/02/14, why is this?, also no email was ever sent to me. These letters were never handed to me nor was any other letter(s) on the day of my dismissal. These 2 letters are the only correspondence I have received from the RSPCA.”

[4] The Respondent lodged an Employer Response to Unfair Dismissal Application (the Employer’s Response) on 5 March 2014. In the Employer’s Response the RSPCA objected to the Application as it was lodged out of time. The Employer’s Response stated: “Mr Jordan did not have to wait for any length of period for any correspondence in relation to his dates of employment as this was provided to him, by hand, on 14 January 2014. There is no reason as to why a claim could not have been lodged within the time period.”

[5] The reason for the delay seems to be primarily that the Applicant did not realise that he might be able to make a claim for unfair dismissal as he seems to have thought that casual employees cannot make such applications. A further reason appears to be that the Applicant was seeking his dates of employment because “he could try and proceed with some sort of action over this”. Exactly what sort of action he was contemplating is unclear although an inference could be drawn from the remedy sought in the Application that he is seeking award or agreement entitlements. This leads to another inference that could be reasonably drawn that the reason the Applicant required the dates was not in order that he could ascertain whether he could, or would, pursue a claim for unfair dismissal, but rather what asserted entitlements he could, or should, pursue. The reasons for the delay therefore appear to be a combination of ignorance of a right to pursue an unfair dismissal claim and another reason unrelated to any unfair dismissal claim.

[6] It is clear that the Applicant became aware of the dismissal on the 14 January 2014. The only action the Applicant appears to have taken was to make a request for information about his employment from the employer. As found above this information was not information that could reasonably be considered as information related to his claim for unfair dismissal. Based on the reasons the Applicant himself has given there is no reason really proffered as to any action taken by him in respect of this Application.

[7] I do not consider there is any prejudice the RSPCA faces should the Application be allowed.

[8] The Applicant has provided no information regarding the merits of the Application. The RSPCA provided a detailed outline of the reasons for the dismissal in the Employer’s Response. Those reasons related to performance and details were given of a warning on 8 August 2013 and a final warning on 16 September 2013. I am not satisfied that the merit of the Application weighs in favour of time being extended.

[9] I also do not consider that after taking into account fairness between the Applicant and others that it weighs in favour of the Application being allowed.

[10] I therefore find that there are no exceptional circumstances here. The Application will not be allowed by extending the time for lodgement. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 13 March 2014

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