Mr Mark Nicholson v House with No Steps
[2012] FWA 8919
•19 OCTOBER 2012
[2012] FWA 8919 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Nicholson
v
House With No Steps
(U2012/9364)
VICE PRESIDENT WATSON | SYDNEY, 19 OCTOBER 2012 |
Application for an unfair dismissal remedy - jurisdiction - application for extension of time for lodgement - whether exceptional circumstances - Fair Work Act 2009 - s.394
[1] This decision, edited from a decision on transcript on 12 October 2012, concerns an application for an unfair dismissal remedy by Mr Mark Nicholson pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Nicholson’s employment by the House With No Steps.
[2] The House With No Steps objected to the application on the basis that the application was filed outside the time frame prescribed in s.394(3) of the Act. This decision relates to Mr Nicholson’s application for an extension of time for filing of his unfair dismissal application.
[3] Mr Nicholson’s unfair dismissal application was filed on 8 August 2012 and it relates to a termination of employment that arose from the submission of a resignation on 18 June 2012 by giving two weeks' notice of termination of employment. I find therefore that the application is out of time, that the 14-day time period ran from the date the termination took effect, being 2 July 2012, and the application was required to be filed by 16 July if the 14-day time period was complied with. The application was made approximately three weeks after the expiry of the 14-day time period.
[4] The tribunal may allow an extension of time under s.394(3) of the Act if satisfied that there are exceptional circumstances taking into account a number of matters set out in that subsection. I have considered all of the material filed on behalf of the parties in this matter and I make the following findings.
[5] The first factor I am required to consider is the reasons for the delay. The reasons for the delay advanced by Mr Nicholson related, firstly, to his medical condition where he said that he was not in a position to deal with paperwork and many other aspects of everyday life in the period immediately following his resignation. Secondly, he indicates that he was unaware that there was a time limit for unfair dismissal applications to be filed as he has not been in that situation before.
[6] The evidence in relation to the first of those matters does indicate that Mr Nicholson felt under significant stress at the time of termination and felt that, in his words, he needed to get out of the Allawah house to which he was allocated. Shortly after leaving the Allawah house he commenced work of a different nature which assisted his emotional state. The evidence also establishes that there was a further deterioration of Mr Nicholson’s condition on or about 1 August 2012 and that the application was filed approximately a week after that date.
[7] It is also clear that the Mr Nicholson has received medical assistance in relation to stress and anxiety for a significant period which includes a period during his employment and periods post-employment. The precise mental state at any particular time is more difficult to determine, but it does appear that there is a significant history of stress-related disability and it continued for a significant period and it appears is still continuing. The second reason relating to the awareness of the time limit has also been raised in addition to the reason relating to Mr Nicholson’s mental state and capacity to deal with paperwork.
[8] The next factor I am required to have regard to is when Mr Nicholson first became aware of the dismissal. Given that the termination of employment arose from his resignation, he was, of course, aware at the time he submitted his resignation. Immediately after submitting his resignation there were discussions with his employer. He was asked whether he was sure he wished to resign and he confirmed his decision. I am satisfied that he was clearly aware of the termination at the date on which it occurred.
[9] The next factor to be considered is whether Mr Nicholson has taken any action to dispute the dismissal. It does appear that the first occasion that he did so was when he filed the application on 8 August 2012. There was no evidence of any communication of a challenge to the termination at any time prior to that. Indeed, it does appear that Mr Nicholson confirmed his intention to resign in conversations with the employer that I have mentioned shortly after submitting his resignation on 18 June 2012.
[10] The next factor relates to prejudice to the employer, including prejudice caused by the delay. The evidence in this matter establishes that the House With No Steps has filled the vacant position and if now required to contest an unfair dismissal action, it would be doing so in circumstances where it had filled that position. I consider that that matter does indicate an element of prejudice to the employer by granting the application.
[11] The next factor concerns the merits of the application generally. The employer submits that the application is without merit because the termination arose at the initiative of the employee, not the employer and that this could be a further jurisdictional impediment on the matter proceeding. That question is not formally before me today and would require further consideration, specifically as to whether an action by the employer left Mr Nicholson with no other alternative but to resign in all of the circumstances. However, it does appear to me that Mr Nicholson would have a significant hurdle in establishing that in these circumstances the termination was at the initiative of the employer.
[12] The final factor relates to fairness as between Mr Nicholson and other persons in a similar position. I do not consider this to be a relevant factor in the circumstances of this case.
[13] In all of the circumstances I am not satisfied that there are exceptional circumstances to warrant an extension of time being granted. It does appear to me that Mr Nicholson could have taken steps to inquire about an unfair dismissal remedy both during the notice period and the period after the cessation of his employment on 2 July 2012. He could have been assisted in that regard, as he has been assisted, in the filing of the application and the filing of other material and he could have sought advice in that period either directly or through friends or family members.
[14] Although I have sympathy for his position, I do not consider that there are exceptional circumstances that justify an extension of time. I note in particular in relation to the other factors, the significant hurdle that I have mentioned of a jurisdictional nature as to whether the employment was terminated at the initiative of the employer in any event and I attach weight to that consideration.
[15] I therefore decline the application for an extension of time. That application is dismissed and the application for an unfair dismissal remedy is therefore dismissed.
VICE PRESIDENT WATSON
Appearances:
M. Nicholson on his own behalf.
A. Last for the House With No Steps.
Hearing details:
2012.
Sydney.
October, 12.
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