Mr Peter Grant v Alexander Colquhoun and Son Pty Ltd T/A Colquhouns Brisbane Bag Co
[2012] FWA 8911
•23 OCTOBER 2012
[2012] FWA 8911 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Grant
v
Alexander Colquhoun & Son Pty Ltd T/A Colquhouns Brisbane Bag Co
(U2012/11438)
COMMISSIONER ROE | MELBOURNE, 23 OCTOBER 2012 |
Unfair dismissal - extension of time for lodging application.
[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Peter Grant (the Applicant) in respect of his dismissal by Alexander Colquhoun & Son Pty Ltd T/A Colquhouns Brisbane Bag Co (the Respondent)
[2] The Applicant did not attend the hearing on 16 October 2012 and did not comply with the directions issued on 27 August 2012 for him to provide a submission by 10 September 2012. At the conclusion of the hearing I decided to reject the application for an extension of time unless the Applicant could provide convincing reasons why it would be a denial of natural justice not to provide him with a further opportunity to be heard.
[3] My Associate wrote to the Applicant on 16 October 2012 as follows:
“Your application for an extension of time for your unfair dismissal application was heard at 9am on 16 October 2012. You were provided with the notice of this hearing on 27 August 2012. There is evidence on file of telephone discussion with you by Brooklin Charlton on 10 September 2012 which confirms that you did received the notice of hearing and were aware of the requirement on that notice for you to provide submissions in support of your application by 10 September 2012. You did not provide any submissions but the employer did provide their submissions. We contacted you by telephone when you did not arrive for the hearing. A person who lived at your house confirmed that you still live at the address and that the contact details we have are correct.
The Commissioner at the hearing advised that based on the material before him he did not believe that an extension of time should be granted. The Commissioner is satisfied based on that material that the dismissal took effect at the meeting on the 21 June 2012 when you were notified that you were dismissed and that you would be paid two weeks in lieu of notice. This was confirmed by the correspondence of 25 June 2012. Therefore the application for unfair dismissal is 7 days late. The Commissioner is satisfied based on the material before him that you were aware of the termination at the time it occurred. The Commissioner cannot based on the material before him see any exceptional circumstances which would justify an extension of time. The Commissioner is of the view that you have had adequate opportunity to present further reasons why there is an exceptional circumstance which would justify the extension of time being granted. The Commissioner has decided that he will issue a decision dismissing your application unless by close of business on Thursday 18 October you provide reasons which convince the Commissioner that it would be a denial of natural justice not to provide you with a further opportunity to be heard.
Please respond by close of business on Thursday 18 October 2012. If you fail to respond a decision will be issued in this matter.”
[4] The Application was lodged on 12 July 2012. The Applicant says on the Application form that he was employed from 21 August 2010 and that he was notified of his dismissal, for reasons of serious breach of safety procedures which the Respondent said was serious misconduct, on 21 June 2012 and that the dismissal took effect from 5 July 2012. The Respondent agrees with this except that they say that the dismissal took effect from 21 June 2012. The Respondent paid two weeks wages upon termination.
[5] It is clear that if the dismissal was on 21 June 2012 then the Application is seven days late.
[6] The Applicant did not lodge written submissions in support of an extension of time by the date in the directions. The Respondent did lodge written submissions and a statement from Mr Creek, State Manager of the Respondent.
[7] The Respondent sent a letter to Mr Grant signed by Mr Creek and dated 25 June 2012 which was “confirming your dismissal from Colquhouns Bag Co as from 21/6/12.” The correspondence referred to the reasons for the termination and that it had been discussed at the meeting at about 10.30am on 21 June 2012 and to the payment of two weeks in lieu of notice. Mr Creek said that the serious safety breach occurred on the afternoon of 20 June 2012 and that a meeting was held on 21 June 2012. Mr Creek said that he advised the Applicant that he was terminated at that meeting and that he would be sent a letter of dismissal and two weeks wages in lieu of notice. The Applicant was then escorted from the premises.
[8] I am satisfied that the dismissal took effect on 21 June 2012. The period of wages in lieu of notice did not extend the period of employment. The Application is 7 days late.
[9] Section 394(2) of the Fair Work Act 2009 (the Act) provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
[10] Subsection 394(3) provides:
“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[11] In respect to Section 394(3)(a) the Respondent argues and I accept that there is no reason for the delay which has been provided which could justify an extension of time. The Applicant did not provide any reason despite a number of opportunities being provided to him.
[12] I am satisfied in respect to Section 394(3)(b) that the Applicant was made aware that his employment was being terminated at the meeting on 21 June 2012. The Applicant was then escorted from the workplace.
[13] I am satisfied that in respect to Section 394(3)(c) the Applicant took no action to contest the termination until the lodgement of his unfair dismissal application.
[14] I am satisfied in respect to Section 394(3)(d) that there is no prejudice beyond the normal to the employer if the application for extension of time is granted. The length of the delay of 7 days is relatively short. The relevant information would still be available.
[15] I am satisfied in respect to Section 394(3)(e) that the allegations of misconduct alleged by the Respondent if proved would provide a valid reason for termination. However, the Applicant alleges that what occurred was normal practice and that safety procedures at the Respondent were poor. I am not in a position to determine the merits of the Application at this stage. From what is before me at this stage the merits are a neutral consideration in the granting of an extension of time.
[16] There is nothing which suggests that Section 394(3)(f) is relevant in the circumstances of this case. The allegations by the Applicant that safety procedures are not consistently applied does not suggest that there are others in a similar position to the Applicant.
[17] The most relevant consideration in these circumstances is the criterion in Section 394(3)(a); that is, the reasons for delay. I am not satisfied that the reasons for delay constitute exceptional circumstances either by themselves or in combination with the consideration of the other factors set out above.
[18] There is no suggestion of incapacity which prevented the making of the Application.
[19] Ignorance of the time limit is not an exceptional circumstance.
[20] Taking all those matters into consideration which are specified in section 394(3) of the Act, I cannot find that there are exceptional circumstances which would justify me granting the extension of time for the application. I refuse the application for an extension of time in this matter and therefore the Applicant is unable to further pursue this particular application. The Section 394 Application for unfair dismissal remedy is dismissed. The matter is now concluded.
COMMISSIONER
Appearances:
No appearance for the Applicant.
Ms C Collins and Ms B Charlton for the Respondent.
Hearing details:
2012
Brisbane
October 16
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