Mr Martin Fareo v Australian Uniform Service Pty Ltd

[2013] FWC 639

[2013] FWC 639

FAIR WORK COMMISSION

DECISION

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

Mr Martin Fareo
v
Australian Uniform Service Pty Ltd
(U2012/14676)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 30 JANUARY 2013

Application for an unfair dismissal remedy - application 177 days late, no exceptional circumstances, no extension of time granted for s.394 application to be made.

[1] The application for an unfair dismissal remedy which this decision concerns has been filed outside the time limit for doing so. The applicant’s dismissal took effect on 23 April 2012. His application made pursuant to s.394 of the Fair Work Act 2009 (the Act) was filed on 31 October 2012 by which date it was some 177 days beyond the 14 day time limit set by s.394(2) of the Act. The applicant requested that I allow a further period for the application to be made.

[2] This matter was listed for hearing before me on 29 January 2013. The applicant represented himself. Australian Uniform Service Pty Ltd (the respondent) was represented by Mr Fagir and opposed the granting of any further period. At the completion of the hearing I indicated I was not persuaded that exceptional circumstances existed which justified the grant of the further period sought by the applicant. These are my reasons for that decision.

[3] Section 394(2)(b) allows for the extension of the period for making a s.394 application beyond the 14 day time limit prescribed by the Act. Section 394(3) provides that for a further period to be granted I must be satisfied there are exceptional circumstances for doing so. In that respect I must take into account a number of considerations set out in ss.394(3)(a) to (f). I now turn to those considerations.

(a) The reason for the delay

[4] By way of background I note that the applicant was employed by the respondent on 27 June 2011 as a sales representative. He reported to Mr Hamilton who is the NSW Sales Manager. The applicant’s dismissal took effect on 23 April 2012. The reason given in the letter of dismissal was unsatisfactory performance.

[5] The applicant set out his reasons for his application being late in his s.394 application and in a statement tendered in the proceedings before me. Two further documents were relied upon by him, one being a medical certificate and the other comprising results from some medical tests and details of a prescribed medication he was taking. I refer to these documents later in this decision. The respondent relied on its employer response form, written submissions and a statement of Mr Brailey, its General Manager.

[6] Based on the documents tendered by the applicant and his submissions to me the following is a summary of the matters he relied upon. The applicant said he was emotional and not his normal self after being dismissed. I note that in his s.394 application he described this as the major reason his application was late. He also referred to the fact he was being treated for high blood pressure. A medical certificate of Dr Georgy dated 10 December 2012 was tendered by him. It is addressed “To whom it may concern” and sets out the applicant’s name, date of birth and home address. It then contains one sentence which reads “Has attended today for consultation. Mr Martin Fareo suffers high blood pressure and on medication for that reason.” I also had before me medical records which show that in January 2011 the applicant had undergone tests including an ECG and was taking a prescribed medication for high blood pressure.

[7] I will deal with the above two reasons together. Accepting that the applicant felt emotional and distressed does not of itself provide an adequate explanation for the lengthy period of delay in filing. I have no medical evidence it contributed in any way to the delay in taking advice about what remedies he could pursue following his dismissal. The evidence which I have relates to two particular times. The first in January 2011 which was some 5 months prior to the applicant’s commencing employment with the respondent. No submission was made to show how this evidence related in any way to the delay in filing. The next evidence I have is the medical certificate of December 2012 (5 weeks after the applicant filed his application) which records that the applicant has high blood pressure and was on medication. It provides no explanation as to how that condition justifies the applicant not having taken any action to seek advice about any legal rights he may have following his dismissal. There is no basis to find that this medical condition affected in any way his seeking such advice and/or filing an application.

[8] The applicant said he thought Mr Brailey was trying to compensate him for the way in which Mr Hamilton had treated him. This appears to relate to the decision of Mr Brailey to give the applicant an additional weeks pay 1. That fact relates in no way to an explanation for the delay and I accept the evidence of Mr Brailey as to his motivation for doing so.

[9] The applicant also said he required time to “rekindle his marriage” as his dismissal had brought a financial burden on his family. He did not develop any submission as to what relevance this had as an explanation for the delay although I accept he had made attempts to find other employment. However he gave no evidence as to what he had done in that respect nor is it clear how he asserts this consideration comprises a reason for the delay in filing his application.

[10] Although the applicant in his written statement said he had “limited knowledge of the available support” until he was advised of the “process and procedure” he did not address this at all before me. If what he meant by this comment was that he was ignorant of his legal rights or remedies that of itself is not an acceptable reason for the delay. Ignorance of those rights does not constitute an exceptional circumstance. 2 The applicant says nothing in any of his evidence or his submissions about what he did at any time between his dismissal and the day he filed his application. I do not know when or from whom he may have sought advice. In short, the applicant identified no action he had taken at any time prior to 31 October 2012.

(b) Whether the person first became aware of the dismissal after it had taken effect

[11] This consideration does not arise in this case. The applicant knew of his dismissal well before it took effect.

(c) Any action taken by the person to dispute the dismissal

[12] I accept the respondent’s submission there is no evidence of any action that was taken by the applicant to dispute his dismissal. The first time he raised any challenge to it was when he filed his s.394 application.

(d) Prejudice to the employer (including prejudice caused by the delay)

[13] The affidavit of Mr Brailey indicates the prejudice associated with the significant delay in filing is that he and Mr Hamilton will now have a diminished ability to recall specific details. He was not cross examined on this assertion.

(e) The merits of the application

[14] The parties agreed that in respect to this consideration I should find that the applicant’s case is not without merit.

(f) Fairness as between the person and other persons in a similar position

[15] This consideration was not addressed and it is sufficient for me to find there was no evidence of any other person employed by the respondent in a similar position. As for other persons who delay the filing of a s.394 application for as long as the applicant has here and then proffer little to justify an extension of time, such extensions are rarely, if ever, granted.

[16] Having considered all of the evidence and the submissions I was not satisfied there existed exceptional circumstances such as to justify the granting of a further period for the applicant to make his s.394 application. His s.394 application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. M. Fareo on his own behalf.

Mr. O. Fagir, solicitor, for Australian Uniform Service Pty Ltd

Hearing details:

Sydney

2013

29 January

 1   There was no suggestion the applicant did not receive his correct entitlements upon termination.

 2 Nulty v Blue Star Group Pty Ltd [201] FWAFB 975 (although this was a s.365 claim the comments as to exceptional circumstances are also applicable to s.394(3)) , Kennedy v The Department of Human Services [2012] FWA 10068

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