Mr Martin Trott v Hays Specialist Recruitment (Australia) Pty Ltd T/A Hays Specialist Recruitment

[2014] FWC 4504

[2014] FWC 4504

FAIR WORK COMMISSION

DECISION

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

Mr Martin Trott
v
Hays Specialist Recruitment (Australia) Pty Ltd T/A Hays Specialist Recruitment
(U2014/6368)

COMMISSIONER CLOGHAN PERTH, 8 JULY 2014

Unfair dismissal.

[1] On 9 April 2014, Mr Martin Trott (Mr Trott or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Hays Specialist Recruitment (Australia) Pty Ltd T/A Hays Specialist Recruitment (Employer).

[2] Mr Trott alleges that he was dismissed by Hays Specialist (Australia) Pty Ltd T/A Hays Specialist Recruitment on 14 January 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Trott has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 9 April 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; 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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 9 April 2014, I issued procedural directions to the parties on 8 May 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 9 April 2014.

CONSIDERATION

[9] The burden lies with Mr Trott to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

[10] The Applicant’s submission is relatively short and reproduced below in its entirety.

“(1) Due to medical reasons I was unable to follow up on the termination of my employment I was required to travel from Kalgoorlie to Perth for specialist treatment.

(2) I was not aware that I had my employment terminated until the employee who replaced me telephoned me to tell me he was doing my job. When I got back from Perth I went to ALS and was told to contact Fair Work. I still was not contacted by the employer, to advise of my termination.

(3) I lodged a clam with Fair Work as soon as I received the form from them, no mention was made that I was out of time to lodge the claim.

(4) I was not notified by the Employer that I had been dismissed.

(5) This is a true account of events that took place. I signed off on a workers’ compensation claim on 14 January 2014. I did not expect to be dismissed by the Employer as no mention was made of this at the conciliation meeting”.

[11] I make the following observations regarding the Applicant’s submission:

● “medical reasons” is so broad and unspecific as to be meaningless;

● the submission avoids any particulars concerning timelines relating to medical reasons;

● the submission is not accompanied by any documentation relating to the illness or injury;

● the submission does not indicate that the Applicant was so ill or injured that it precluded Mr Trott from making application to the Commission within the statutory timeline of 21 days of the dismissal taking effect; and

● the Applicant does not advise when:

• he received a telephone call from the person who “was doing my job”;



• when he went to ALS;



• when he contacted the Commission; and



• when he received the form from the Commission.

[12] Finally, Mr Trott states that when he signed off on his workers’ compensation claim, “I did not expect to be dismissed by the Employer as no mention was made of this at the conciliation meeting”.

[13] Mr Trott is correct in saying that he did not expect to be dismissed by the Employer; because as part of the workers’ compensation claim, he resigned.

[14] The Certificate of Outcome issued by the Conciliation Service of WorkCover WA, relatively states:

“At the conclusion of the Conference held 14/1/14 the parties advised an agreement was reached to settle the worker’s claim (and this application), the terms of which are reflected in a Memorandum of Consent to Finalising Order, a copy of which is attached to this certificate.

The respondent worker was advised by the Conciliation Officer he was under no obligation to settle his claim and could, if he wished, seek independent legal advice before entering into discussions with the application employer about the settlement of his claim. The worker informed the Conciliation Officer that he understood his rights in this regard and nevertheless wished to attempt a resolution of his claim. The worker was further advised by the Conciliator Officer of the ramifications of settling his claim...”

[15] The letter of resignation is part of settlement of the workers’ compensation claim. The resignation is clear and unambiguous and was signed in the presence of the Conciliator. I do not find that the Applicant was forced to sign.

CONCLUSION

[16] Having considered the Applicant’s submission and the provisions of subsection 394(3) of the FW Act, I am satisfied that there are no exceptional circumstances to allow the application to be filed beyond the 21 days after the alleged dismissal took effect. I say “alleged dismissal”, because the documentation demonstrates that the Applicant, of his own volition, resigned on 14 January 2014 as part of settlement of his workers’ compensation claim. Accordingly, the application must be dismissed. An order to this effect is issued conjointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 23 May 2014.

Respondent: 18 June 2014.

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