Mr Nick Nicola v Guild Group Holdings Ltd

[2011] FWA 2601

[2011] FWA 2601

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Mr Nick Nicola
v
Guild Group Holdings Ltd
(U2011/5248)

COMMISSIONER SMITH MELBOURNE, 4 MAY 2011

Extension of time; granted.

[1] The following decision, now edited, was issued during proceedings conducted on 29 April 2011.

[2] This is an application by Mr Nick Nicola for an extension of time in which to lodge his application pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Nicola was employed by Guild Group Holdings Limited on 8 June 1981 and had his employment terminated for poor performance and inappropriate behaviour on 1 February 2011. His application was lodged by his representative on 18 February 2011, some four days out of time.

[3] Section 394(2) of the Act requires that an application must be made within 14 days after the dismissal took effect. Section 394(3) is the statutory test which Fair Work Australia (FWA) must apply when considering applications of this nature. It is to these matters that I now turn.

[4] In taking these matters into account I must be satisfied that there are exceptional circumstances.

1. The first goes to the reason for delay, and there are three factors relied upon. The first is that Mr Nicola was both shocked and upset by his termination. This, in isolation, is not an exceptional circumstance as termination of employment often brings with it an element of shock and distress. However, there is a factor in this matter which does warrant consideration and that is the applicant’s long period of service. The impact of job loss after such a long period of service can be severe.

2. The second factor relied upon is that the applicant’s son was both clinically ill, suicidal, and in serious trouble with the police. Mr Nicola’s son was due in Court on the day he was dismissed, but that was adjourned until this month. Given the particular circumstances, his son was facing a custodial sentence and it was necessary to gather material in mitigation.

3. The final matter was that the applicant was unaware of the time limit. This is a factor which is wholly without merit and will not be taken into account.

[5] Guild Group Holdings (Guild) argue that the incident with the applicant’s son and his experience with his son was over a long period of time and prior to the termination of employment. Further, Guild argued that the applicant clearly had discussions with persons within the timeframe and that should have enabled him to comply with the statutory timeframe.

[6] Section 394(3)(b) doesn’t raise any issue in this matter. Section 394(c) refers to action taken by the person to dispute the dismissal. In this connection it is clear that action was taken but that it didn't embrace the 14 day statutory period.

[7] As to the prejudice of the employer, apart from the fact that it may have to argue the merits of the termination there is no issue about witnesses or loss of memory or other factors which would bring prejudice.

[8] Turning to the merits, this is not a proceeding which considers the merits or otherwise it is only in circumstances, where on the applicant’s own case, it is entirely without merit and then it is not unfair not to extend time.

[9] Finally, in terms of fairness between this person and other persons in a similar position I would doubt that the combination of circumstances facing the applicant, including the duration of the delay would be easily replicated.

[10] On this basis I find that there are exceptional circumstances for FWA to allow a further period for the application to be made. I will extend the time and the matter will be referred.

COMMISSIONER

Appearances:

M Ball of Counsel for Mr N Nicola.

S Peters on behalf of Guild Group Holdings Ltd.

Hearing details:

2011.

Melbourne:

April, 29.

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