Mr Mark Walker v Delron Cleaning

[2017] FWC 250

[2017] FWC 250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Mark Walker
v
Delron Cleaning
(C2016/6914)

COMMISSIONER ROE MELBOURNE, 12 JANUARY 2017

Application to deal with contraventions involving dismissal – extension of time.

[1] Mr Walker was employed by Delron Cleaning (Delron) from 17 October 2016 until 2 November 2016. Although Delron disagree that Mr Walker was dismissed they accept that his employment ended on 2 November 2016. The following facts were accepted by the parties:

● Date of dismissal: 2 November 2016.
● Date of meeting to discuss the ending of employment; meeting was requested by Mr Walker: 3 November 2016.
● Date general protections application form was received by Mr Walker: 10 November 2016.
● Date separation certificate was received by Mr Walker: 15 November 2016.
● Date that the general protections application form was completed by Mr Walker: 20 November 2016.
● Date the form was posted by Mr Walker: not earlier than 21 November 2016.
● Date the form was received by FWC: 9am on 24 November 2016.
● Application was received by FWC one day late.

[2] Section 366 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; 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.

The reasons for delay

[3] The reason given for the delay is that Mr Walker said that he was told that he needed to send everything with his application so he waited until he had received the separation certificate from Delron before submitting the application. Mr Walker accepted that although the mail was a little slow in that it took from 21 November 2016 until 24 November 2016 for the mail to arrive, it was not unusually or especially delayed. Mr Walker could offer no reason why he did not send the application in immediately after he received the separation certificate on 15 December 2016. I am satisfied that the reason for the delay was simply that Mr Walker did not send in the application early enough. Even though the period of delay of one day is short, I am not satisfied that there is any reason for the whole of the period of the delay which would support the finding of exceptional circumstance.

Action taken to dispute the dismissal

[4] Mr Walker did challenge the dismissal and requested a meeting the next day. That meeting occurred. No other action was taken other than to submit the application for unfair dismissal and general protections. The applications were made at the same time and the unfair dismissal application was subsequently withdrawn. This is a neutral factor.

Prejudice

[5] Given the short delay there is no prejudice to the employer.

Merits

[6] I put to Mr Walker my observation that there was nothing in the application which identified the exercise of a workplace right which it is alleged contributed to the adverse action (i.e. the dismissal). All that is alleged in the application is that the dismissal was unfair and unreasonable because there was no proper notice or reason given and as far as Mr Walker is concerned he did nothing to justify termination of his casual employment. Mr Walker was not able to add anything to this. Although Mr Walker did not have the opportunity to fully present his case and hence it would be inappropriate to reach a firm conclusion, I am satisfied that this is not a strong case and the merits do not favour a finding of exceptional circumstance.

Fairness with others in a similar position

[7] Neither party raised any issues in respect to this matter and I am satisfied that it is a neutral factor in this case.

Conclusion

[8] Considering all of the factors in Section 366 leads me to conclude that there are no exceptional circumstances which justify an extension of time in this case. The application is therefore dismissed. An order is issued separately.

COMMISSIONER

Appearances:

Mr M Walker represented himself.

Mr M Greenhill appeared for the Respondent.

Hearing details:

2017

Melbourne by telephone

January 6

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