Mr Mark Oved v Allied Express Operations Pty Ltd T/A Allied Express

[2015] FWC 3671

[2015] FWC 3671

FAIR WORK COMMISSION

DECISION

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

Mr Mark Oved
v
Allied Express Operations Pty Ltd T/A Allied Express
(U2015/4773)

VICE PRESIDENT WATSON MELBOURNE, 5 JUNE 2015

Application for unfair dismissal remedy - application for extension of time for lodgement - representative error - whether exceptional circumstances - Fair Work Act 2009 s.394.

[1] This decision, edited from a decision on transcript on 29 May 2015, concerns an application to extend the time limit for the making of an application for unfair dismissal remedy by Mr Mark Oved pursuant to s.394 of the Fair Work Act 2009 (the Act). The unfair dismissal application concerns the termination of Mr Oved’s employment with Allied Express Operations Pty Ltd trading as Allied Express (Allied Express).

[2] The application in this matter was filed on 10 April 2015. Although there is some conjecture as to the extent to which the application is late, in my view it is clear from the documentation that has been filed on behalf of the applicant and the communications, both oral and in writing, between Allied Express and Mr Oved that the termination of employment took effect on 23 February 2015. That would mean that the application was filed 25 days after the 21 day time limit in s.394 of the Act.

[3] The Commission may extend the period for filing an application under s.394(3). The Commission can only do so, however, if it is satisfied that there are exceptional circumstances, taking into account the matters that are spelt out in that subsection.

[4] I have taken into account the various materials submitted by the parties and admitted into evidence, and now I consider each of the matters in s.394(3).

[5] First is the reason for the delay.  In the written submissions filed on behalf of Mr Oved it was suggested that the reasons for the delay were illness, an initial attempt to resolve the matter directly with Allied Express, and Mr Oved's solicitor being overseas during the 21 day period in question.

[6] It has emerged today that a further reason for the delay is advanced, and that is representative error by Mr O'Brien who incorrectly considered that an application under s.394 could not have been made when he was consulted in relation to the matter during the 21 day time period. Only subsequently he formed the view that an application could be made when he looked at the matter further on his return from overseas.

[7] I do not consider that the initial matters fully explain the reason for the delay. Further, I am not satisfied that the representative error provides a full reason for the delay because it appears to me that the meaning and application of the Act in this regard is quite clear and there is no basis for either Mr O'Brien or Mr Oved forming the view that an unfair dismissal application could not be made if that question was properly considered.

[8] It appears that the mistake Mr O'Brien contends relates to a misreading of one type or another of s.383 of the Act. It appears that insufficient attention was given to that question by both Mr O'Brien and Mr Oved, and that although it appears to have given rise to the belief at the time that an application could not be made it does not appear to be a sound, or understandable, error in the circumstances. I believe that this impacts on the significance of that reason, in terms of it being a reason for the delay.

[9] The next factor I am required to have regard to is whether Mr Oved first became aware of the dismissal after it had taken effect.  Submissions were made today that a formal letter of termination does not appear to have been provided and that the termination was communicated orally. However there is evidence of documentation being provided to Mr Oved regarding termination payments and all of the conduct of the parties being on the basis that employment had been terminated on 23 February 2015.

[10] The application ultimately alleges that 23 February 2015 was the termination date, as does the letter of demand forwarded by Mr O'Brien on behalf of Mr Oved on 12 March.  In my view that material indicates that Mr Oved knew on 23 February that his employment had been terminated, notwithstanding that the documentation may not have been as extensive as might have been expected in the circumstances. I take into account all of those factors in my overall consideration.

[11] The next factor I am required to have regard to is any action taken by Mr Oved to dispute the dismissal.  There was action taken by Mr Oved to dispute his dismissal.  He consulted a solicitor, Mr O'Brien.  Mr O'Brien forwarded a letter of demand within the 21 day period and made it clear, by virtue of that letter, that Mr Oved contested his termination, and contended that the dismissal was unfair. I have regard to those circumstances.

[12] The next factor concerns prejudice to the employer, including prejudice caused by the delay.  I do not find that there is any prejudice to the employer over and above any prejudice that would have been made if the application was within time.  The application was made between three and four weeks after the time period but there is no material before me to indicate that that delay led to any prejudice to the employer.  So, I do not regard that factor as pointing to the time limit not being extended.

[13] The next factor is the merits of the application.  I can only assess that on the basis of the material filed by the parties, including what is alleged in the application itself.  I do not find that the application is manifestly without merit.  There may be a basis on what is alleged to contend that the termination was harsh, unjust or unreasonable but I cannot form any firm views in relation to that matter on the material before me.  I certainly do not find that the application is without merit.

[14] The next question concerns fairness as between the person and other persons in a similar position. I do not think that factor has any real relevance in relation to the matter before me. I do not consider that factor bears one way or the other on the task that I am required to apply.

[15] Having regard to all of those circumstances, I am required to consider whether there are exceptional circumstances that justify granting an extension of time.  I am not so satisfied having considered all of the matters concerned. The clear ability of the parties, Mr Oved and his solicitor, to consider the matter and file within time, and their failure to do so for whatever reasons do not appear to me to be exceptional circumstances that justify an extension being granted in this matter.

[16] The application for an extension of time is rejected and the application for an unfair dismissal remedy is, accordingly, dismissed.

VICE PRESIDENT

Appearances:

Mr T. O’Brien for Mr Oved.

Mr B. Miles, with Ms B. Pendlebury for Allied Express.

Hearing details:

2015.

Melbourne - Video link to Sydney.

29 May.

Final written submissions:

Mr Oved on 4 May 2015.

Allied Express on 18 May 2015.

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