Mr Matthew Hamill v Conneq Infrastructure Services (Australia) Pty Limited

[2011] FWA 2379

[2011] FWA 2379

The attached document replaces the document previously issued with the above code on 19 April 2011.

The document has been amended to correct a typographical error in paragraph 2.

Cathy Bartlett
Associate to Commissioner Smith

Dated 20 April 2011

[2011] FWA 2379

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Mr Matthew Hamill
v
Conneq Infrastructure Services (Australia) Pty Limited
(U2011/4531)

COMMISSIONER SMITH MELBOURNE, 19 APRIL 2011

Extension of time granted.

[1] The following decision, now edited, was issued during proceedings conducted on 15 April 2011.

[2] Mr Hamill signed his application on 24 January 2011. It was received by Fair Work Australia on 28 January 2011. Section 394(2)(a) of the Fair Work Act 2009 (the Act) requires that the application be lodged within 14 days.

[3] Mr Hamill’s application is out of time and the employer objects to the matter being accepted out of time. Pursuant to s.394(2)(b) of the Act Fair Work Australia may extend the time of lodgement provided it is satisfied that there are exceptional circumstances, taking into account the factors listed in s.394(3)(a) to (f). It is to those matters that I now turn.

[4] On the material provided to me Mr Hamill said that the reason for his delay was: firstly, that he was suffering from depression and that he has been receiving medical treatment and decided to look after his health for a short period of time. Secondly, his father sought to engage lawyers over the Christmas/New Year period. One firm told him that his son’s pay schedule was too low to be of value to them and another said they would not get involved in a wrongful dismissal claim but were certainly interested in a harassment and Workcover claim.

[5] As to this reason Conneq Infrastructure Services (Australia) Pty Limited (Conneq) argues that Mr Hamill had a casual job driving a truck one week after leaving it. Mr Hamill’s father was actively seeking to challenge the claim until it was finally lodged in late January. In this connection it is argued by the respondent employer that there are no exceptional circumstances for allowing an extension of time for lodging the claim.

[6] Examining the circumstances where Mr Hamill had a diagnosed medical condition and the activity of his father to support his application and the responses to that activity, I am satisfied that there are exceptional circumstances for granting an extension of time. I am also satisfied that Mr Hamill actively sought to contest his dismissal. Given the relatively short time frame and the issues involved I find there is no prejudice to the employer for the matter to go forward and be tested on the merits.

[7] As to the merits, it is not a matter for these proceedings to determine whether there is merit, simply whether the matter is wholly without merit. I do not find that the matter is wholly without merit.

[8] Finally, given the particular circumstances of this case it is not unfair to grant an extension, an order will issue granting an extension and the matter will be referred for further consideration.

COMMISSIONER

Appearances:

G Hamill for the applicant.

M Gould on behalf of Conneq Infrastructure Services (Australia) Pty Limited.

Hearing details:

2011.
Melbourne:
April, 15.

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