Mr Patrick Wandera v City of Subiaco

[2014] FWC 8358

[2014] FWC 8358

FAIR WORK COMMISSION

DECISION

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

Mr Patrick Wandera
v
City of Subiaco
(U2014/12559)

COMMISSIONER CLOGHAN PERTH, 24 NOVEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] On 16 September 2014, Mr Patrick Wandera (Mr Wandera or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, City of Subiaco (Employer).

[2] Mr Wandera states in his application that his dismissal took effect on 11 July 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) of the FW Act.

[5] Mr Wandera has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 16 August 2014), if it is satisfied that there are exceptional circumstances.

[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 16 September 2014, I issued procedural directions to the parties on 30 September 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 Applicant to file the application on 16 September 2014.

APPLICANT’S SUBMISSION

[9] The Applicant does not address the criteria in s.394(3) of the FW Act but makes a general submission why his dismissal was unfair, the consequences of previous disciplinary action, he is a good worker, family circumstances and seeking reconciliation.

[10] From his application, Mr Wandera states that the reason for the delay is that he lodged an application in the Western Australia Industrial Relations Commission (WAIRC) and the Employer responded that the matter was within the jurisdiction of the FW Act.

EMPLOYER’S SUBMISSION

[11] The Employer notes that Mr Wandera did not make the application to the WAIRC until 27 days after the dismissal took effect.

[12] The Employer states why the dismissal was appropriate, and further, it “acted in more than a fair manner by allowing him to convert the termination to a resignation after the termination to assist him in finding further work”.

[13] Finally, in relation to matters the Applicant has raised as to why the dismissal was unfair, the Employer asserts it was unaware of these circumstances.

[14] Although Mr Wandera had the opportunity to respond to the Employer’s submission, he chose not to do so.

RELEVANT BACKGROUND

[15] On 7 August 2014, the Applicant filed an application in the WAIRC alleging unfair dismissal.

[16] The Employer responded to the application on 28 August 2014.

[17] The Employer’s response is to set out why the FW Act applied to Mr Wandera’s employment and that the WAIRC had no jurisdiction to deal with Mr Wandera’s application.

[18] The Employer’s response to the WAIRC application was provided to the Applicant on 28 August 2014.

[19] On 15 September 2014, Mr Wandera discontinued his application in the WAIRC.

[20] On 16 September 2014, Mr Wandera made his application to the Commission.

CONSIDERATION

[21] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[22] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[23] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[24] The burden lies with Mr Wandera to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances as set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[25] I apprehend that the reason for the delay is that Mr Wandera made application to the WAIRC in the first instance. However, as the Employer points out, the application was 27 days after the dismissal took place.

[26] Even if the applicant had filed the application with the correct jurisdiction, it would have been beyond the statutory timeline of 21 days after the dismissal took effect. The Applicant has provided no submission on why he could not file the application within the statutory timeline.

[27] I am satisfied that the Applicant has not provided a valid reason for the delay in lodging the application.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[28] There is no dispute between the parties that Mr Wandera ceased employment on 11 July 2014.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[29] The Applicant has provided a copy of his resignation letter dated 15 July 2014 with effect from 11 July 2014. The resignation letter reads:

“This note serves to inform you that I would like to tender my resignation inline with my family commitments with effect from Friday the 11th/07/2014. Due to straining family commitments, I cannot perform my duties as required. However, I thank you for granting me the opportunity to work with the organization for one and a half years.”

[30] The Applicant has also provided a copy of a Centrelink statement in which he states on 7 August 2014, that he was “forced to resign”.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[31] Both parties do not address this criterion in their submissions.

Paragraph 394(3)(e) - the merits of the application

[32] Both parties have set out their respective contentions as to whether the dismissal was fair or unfair. Irrespective of these contentions, I have a copy of Mr Wandera’s resignation letter which inevitably leads to the jurisdictional question of whether the Applicant is protected from unfair dismissal as he resigned from his employment.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[33] It would appear that this criterion is not relevant. To the extent it is relevant, I adopt a neutral position with respect to this criterion.

CONCLUSION

[34] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Wandera filing his application. An Order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 13 October 2014.

Respondent: 27 October 2014.

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