Mr Predrag Petrovic v Incitec Pivot Limited T/A Dyno Nobel Asia Pacific Pty Ltd

[2014] FWC 6738

[2014] FWC 6738

FAIR WORK COMMISSION

DECISION

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

Mr Predrag Petrovic
v
Incitec Pivot Limited T/A Dyno Nobel Asia Pacific Pty Ltd
(U2014/11714)

COMMISSIONER CLOGHAN PERTH, 24 SEPTEMBER 2014

Unfair dismissal - jurisdictional objection - out of time.

[1] On 14 August 2014, Mr Predrag Petrovic (Mr Petrovic or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Incitec Pivot Limited T/A Dyno Nobel Asia Pacific Pty Ltd (Employer).

[2] Mr Petrovic states in his application that his dismissal took effect on 25 June 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 an application to be made within 21 days after the dismissal took effect.

[5] Mr Petrovic has not made his 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, 14 August 2014), if it is satisfied that there are exceptional circumstances.

[6] On 20 August 2014, I issued Directions and advised the parties that I intended to deal with the issue of whether the Commission can be satisfied that there were exceptional circumstances, by way of written submissions.

[7] This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[8] Section 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.”

CONSIDERATION

[9] 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.

[10] 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.

[11] The burden lies with Mr Petrovic to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

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

[12] On 25 June 2014, Mr Petrovic’s employment ceased due to redundancy.

[13] In his application on 11 August 2014, Mr Petrovic states that the reason for the delay in not filing the application within 21 days was due to:

“The issue was pursued through workers compensation claim at the time I was dismissed during the claim process. My focus was on determination of liability in relation to that matter.”

[14] On 5 August 2014, Mr Petrovic accepted an offer of settlement in relation to his workers’ compensation claim.

[15] I repeat, on 11 August 2014, Mr Petrovic filed his application in the Commission for alleged unfair dismissal.

[16] As a result of directions issued on 20 August 2014, Mr Petrovic submits that the reason for the delay in filing his application was due to:

• a diagnosed mental health condition; and



• English is his second language.

[17] While I have been given an extract from Mr Petrovic’s psychiatric report, it does not serve any useful purpose in setting out its content. Secondly, notwithstanding that English is not Mr Petrovic’s native language, I have a perfectly readable and understandable application made to the Commission on 11 August 2014.

[18] The real reason for the delay in filing the application is that Mr Petrovic chose to pursue a workers’ compensation claim in preference to, or along with, an application to the Commission alleging unfair dismissal.

[19] Mr Petrovic was capable of pursuing and concluding a workers’ compensation claim despite reasons of disability in paragraph [16] above. To now submit that these disabilities prevented him from lodging an application alleging unfair dismissal, is neither creditable nor plausible.

[20] Mr Petrovic has made a choice. That choice was to give priority to a workers’ compensation claim. Mr Petrovic is not the first, and I am sure will not be the last applicant, to give priority to other matters rather than file an alleged unfair dismissal application. However, making a choice is not out of the ordinary, exceptional, unique, unusual, rare or uncommon. Making a choice is not exceptional circumstances - it is an everyday occurrence. In making that choice, the consequences are that Mr Petrovic did not file his application in the Commission within the statutory timeline.

Paragraphs 394(3)(b), (c), (d) and (f)

[21] The Applicant has not addressed these criteria in his submission. The Employer has addressed these criteria individually and I have taken its submissions into account.

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

[22] The Applicant has made a number of assertions of bullying, harassment, discrimination and victimisation. However, his letter of termination of employment states that the reason for his dismissal was redundancy. Mr Petrovic was paid his notice and redundancy entitlements. Pursuant to s.385(d) of the FW Act, a person is excluded from making an application for alleged unfair dismissal if the dismissal was a case of genuine redundancy.

CONCLUSION

[23] For the reasons set out above, submissions and documents, I am not satisfied that there were exceptional circumstances to allow the application to be filed after the statutory timeline of 21 days after the dismissal took effect. Pursuant to paragraph 587(3)(a) of the FW Act, this application is dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 3 and 22 September 2014.

Respondent: 17 September 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR555876>