Mr Peter James Hudson v Pilbara Logistics (WA) Pty Ltd

[2010] FWA 2948

[2010] FWA 2948

FAIR WORK AUSTRALIA

DECISION

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

Mr Peter James Hudson
v
Pilbara Logistics (WA) Pty Ltd
(U2010/6346)

DEPUTY PRESIDENT MCCARTHY PERTH, 17 MAY 2010

Termination of employment – Application lodged out of time.

[1] Mr Peter Hudson (the Applicant) lodged an application for an unfair dismissal remedy (the Application) asserting that he had been unfairly dismissed from his employment with Pilbara Logistics (WA) Pty Ltd t/as Pilbara Logistics (the Respondent).

[2] The Application was lodged by fax on Friday, 19 February 2010. The fax on the Application shows the time the fax was received by Fair Work Australia (FWA) as 10:45 pm (AEST). The date stamp of FWA on the Application is 24 February 2010.

[3] The time elapsed between the fax lodgment and the date stamped would appear to be explained by the payment of the fee required at lodgement not being received at that time, although there is nothing on the file to identify as much. The Applicant gave evidence that he sent a money order for the fees required with the Application. The Applicant gave evidence that the receipt of FWA for the fee was 22 February 2010.

[4] The Fair Work Act 2009 (the FW Act) requires that an application must be made within 14 days after the dismissal took effect or within such further period as FWA allows 1. The FW Act also requires that an application to FWA must be accompanied by any fee prescribed by the regulations2. FWA may allow a further period for the application to be made by a person if it is satisfied that there are exceptional circumstances, taking into account various matters3.

[5] I accept the evidence of the Applicant that the fee was paid on 22 February and find that the Application was lodged on that date. It is not in dispute here that the termination took effect on 31 January. The Application was therefore lodged eight days outside of the time allowed.

[6] I find the circumstances here are that:

1. The Applicant sought advice from the Transport Workers Union (TWU) within a week of his employment being terminated and most likely on 4 February;

2. The Applicant was not a member of the TWU;

3. The Applicant regarded the cost to lodge and proceed with an application of this nature to be high;

4. The Applicant later, and after the time allowed to lodge applications had passed, decided to lodge an application.

[7] The Applicant endeavoured to explain that he was unaware of the right to lodge an application. I do not accept this explanation. Clearly the Applicant was aware for the right from his discussions with the TWU and indeed before he sought advice from the TWU. Indeed the Applicant admitted during his evidence that he was aware of the right to dispute his termination of employment. What I think the Applicant was actually inferring was that he was unaware of the right to represent himself or how to actually go about lodging an application. I accept his evidence in that regard including the inference he was making.

[8] The Applicant took no further action nor sought any other advice following his discussion with the TWU until 19 February.

[9] I have considered the above circumstances and find that the real reason for the delay was the inaction by the Applicant after he had initially sought advice from the TWU. The Applicant appears to have taken the view that because of the expense that may involved that he would not pursue the matter. Combined with that is that the Applicant asserted ignorance of his rights.

[10] The Applicant did take some action to dispute his termination of employment; viz to discuss it with the TWU, but that is all he did. The Applicant appears to have made a conscious decision not to progress either seeking further advice or information or indeed lodging an Application to some time well after the TWU advice had been received.

[11] I consider that the employer would not be unduly prejudiced by the delay other than the normal issues associated with any application of this nature.

[12] I also consider that the merits of the Application are not strong. Indeed the Respondent appears to have a strongly arguable case that the termination of employment was not at the initiative of the employer.

[13] I am not satisfied that there are exceptional circumstances here and consequently I refuse to allow a further period for the Application to be made.

DEPUTY PRESIDENT

Appearances:

Mr P Hudson on his own behalf

Mr S Heathcote Solicitor for Pilbara Logistics (WA) Pty Ltd

Hearing details:

Perth.

2010:

May 11.

 1   S.394

 2   s.395(1)

 3   s.394(3)

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