Mr Michael Gidman v Urbas Painting and Decorating Services

[2016] FWC 690

[2016] FWC 690

FAIR WORK COMMISSION

DECISION

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

Mr Michael Gidman
v
Urbas Painting and Decorating Services
(U2015/14890)

COMMISSIONER ROE MELBOURNE, 2 FEBRUARY 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr Michael Gidman was employed by Urbas Painting and Decorating Services (Urbas) from October 2009 until his dismissal on 7 October 2015. Mr Gidman was paid five weeks pay in lieu of notice. Mr Gidman’s unfair dismissal application was received by the Fair Work Commission on 6 November 2015. The Application is dated 12 October 2015. The application was submitted by mail and the envelope was addressed to the Commission’s post office box. The application was 9 days late.

[2] Urbas is a small business. Urbas says that Mr Gidman was dismissed for repeated failure to follow procedure in notifying when absent due to illness.

[3] Urbas have provided evidence of a number of occasions when it says Mr Gidman was absent and failed to notify in accordance with policy. Urbas provided evidence of when Mr Gidman was spoken to and told that this caused problems for the business and he was reminded of the need to follow the policy. Mr Gidman accepted that Urbas told him that his job was at risk. Mr Gidman says that he was threatened and not believed even when he was genuinely ill and provided appropriate notice and that the termination of his employment was therefore unfair and unreasonable.

[4] Mr Gidman says that the reason for delay was that he had downloaded the application form from the Commission website and prepared the form on 12 October 2015 but he then lost or mislaid the form. He was confused at the time and downloaded and sent the form a few days before 6 November 2015. He confirmed that the form was sent after 28 October 2015; that is, after the time period for making the application in accordance with Section 394 of the Fair Work Act 2009 (the Act). Mr Gidman says that he has, since the dismissal, seen a medical practitioner but he does not suggest that he was incapable of making the application during the period since the dismissal. There is no evidence that the delay is explained by illness. I am not satisfied that the reasons for delay are unusual or support a finding of exceptional circumstances.

[5] Mr Gidman accepts that he was aware of the dismissal on 7 October 2015 when it took effect. This is a neutral factor.

[6] Mr Gidman did not take any action to dispute the dismissal prior to lodging the application in this matter. This is a factor which goes against a finding of exceptional circumstances.

[7] There is no particular prejudice to the employer caused by the short delay. This is a neutral factor.

[8] I have not heard all the evidence in this matter and so can come to no firm conclusion about the merits of the case. The employer argues that the termination was in accordance with the small business code. If the matters raised by the parties were established then both parties have an arguable case. The merits are a neutral factor.

[9] There was no submission that there would be any particular unfairness to grant or not grant an extension of time in this case when compared to other persons in a similar position. This is a neutral factor.

[10] Taking all of the factors specified in Section 394(3) of the Fair Work Act 2009 into consideration I am not satisfied that there are exceptional circumstances which warrant the granting of an extension of time in this case. The application is dismissed.

COMMISSIONER

Appearances:

Mr M Gidman represented himself.

Mr A Urbas appeared for the Respondent.

Hearing details:

2015

Melbourne

January 29

Printed by authority of the Commonwealth Government Printer

<Price code A, PR576656>