Mr Phillip Charles Hamill v Ranchway Holdings Pty Ltd T/A Blu-Chip Harvest

[2010] FWA 8808

[2010] FWA 8808

FAIR WORK AUSTRALIA

DECISION

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

Mr Phillip Charles Hamill
v
Ranchway Holdings Pty Ltd T/A Blu-Chip Harvest
(U2010/6686)

COMMISSIONER CLOGHAN PERTH, 29 NOVEMBER 2010

Unfair dismissal remedy.

[1] On 8 March 2010, Fair Work Australia received an application from Mr Phillip Hamill (“the Applicant”) pursuant to s.394 of the Fair Work Act 2009 (“the Act”)

[2] The Applicant alleges, in his application, that he was unfairly dismissed in his employment from Ranchway Holdings Pty Ltd trading as Blu Chip Harvest (“the Employer”).

[3] Mr Hamill’s application has been the subject of a conciliation conference and has been referred to me to determine, in the first instance, whether the Applicant has met the provisions of s.394(2)(a) of the Act. Section 394(2)(a) of the Act requires the application to be made within 14 days after the dismissal took effect.

[4] Should Mr Hamill’s application not have been made within 14 days after the dismissal took effect, the Tribunal may exercise its discretion to allow such further period if it is satisfied that there are exceptional circumstances.

[5] On 6 October 2010, I forwarded to Mr Hamill correspondence (and a copy to the Employer for information and comment, if appropriate) seeking whether he wanted to “provide further information” in relation to the late application.

[6] I can allow a further period for the application to be made, if I am satisfied there are exceptional circumstances taking into account s.394 of the Act, which provides for:

(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] The Applicant provided a response which was received on 20 October 2010. The Employer did not consider it appropriate to respond.

[8] Mr Hamill states in his application that he commenced employment on or about October 2003.

[9] The Applicant’s employment was terminated on 12 February 2010.

[10] Following his termination of employment, Mr Hamill advises that he sought advice from a lawyer who advised him that he should make application alleging unfair dismissal. Although not providing an exact date, Mr Hamill has informed the Tribunal that it “was a week before I could see a lawyer”.

[11] Subsequently, Mr Hamill claims it was, “several days before I could get through to the appropriate people, after leaving many messages, only to be told I had to apply to the Federal Office of Fair Work Australia. Because I don’t have access to a computer, nor knowledge to use one, I had to rely on them sending me the appropriate forms by mail, and returning them by mail, which all takes time”.

[12] To assist me in my determination, I sought information from the Unfair Dismissals Team in the Melbourne Office of Fair Work Australia. The material parts of the response I received on 17 November 2010, is as follows:

“It could have been a service team member or the help line who the applicant spoke to.

“If it was a team member from our branch, there is nothing in the support team email archive or on CMS+. The only other source of information is private emails. Adam Elliot appears to have dealt with the application. Unfortunately he has passed away so we cannot access those emails.”

[13] The Applicant was terminated on Friday 12 February 2010 and the last day under s.394(2)(a) of the Act was Friday 26 February 2010. Between Saturday 27 February 2010 and 8 March 2010, there were 10 days of which four (4) days are weekend days.

[14] Mr Hamill, essentially provides two reasons for the delay. Firstly, to seek the advice of a lawyer, and secondly, the physical time associated with the delivery of mail by hand.

In view of Mr Hamill’s submission regarding the time taken to obtain legal advice in a Western Australian regional country centre and the uncertain passage of time associated with postal deliveries, I am satisfied that there are valid and exceptional circumstances associated with the delay. In reaching this finding, I am mindful that, notwithstanding these difficulties, Mr Hamill’s application was six (6) working days late.

[15] In relation to s.394(3)(b), Mr Hamill advises that he became aware of and was dismissed on the same day -- 12 February 2010.

[16] Mr Hamill, both in his application on 8 March 2010, and in his submission of 20 October 2010, advises that he sought legal advice to dispute his termination as being unfair. For this reason, I am satisfied that he sought to dispute his dismissal promptly and appropriately, by seeking legal advice.

[17] I consider lodging the application six (6) working days beyond the 14 day limit in Mr Hamill’s circumstances not excessive or prejudicial to the Employer.

[18] With respect to s.394(3)(e), I have read the application and the Employer’s response but have not made any judgement as to its merits but to observe that there is conflict on the facts and matters of context.

[19] Finally, with regard to persons in similar circumstances, it is unlikely that similar circumstances relating to the dismissal are repeatable.

[20] Accordingly, in fairness to Mr Hamill’s geographical location and reliance on postal mail, together with the above components of s.394(3), I consider there are exceptional circumstances, and it is appropriate, to extend the time to lodge the application to 8 March 2010.

[21] I shall now proceed to arbitrate on the matter and, in the first instance, issue Directions and set a time for the hearing.

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