DECISION

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

Mr Robert Quinn
v
Wattle Hill Lodge Inc T/A Wattle Lodge Care
(U2015/9373)

COMMISSIONER ROE

MELBOURNE, 8 SEPTEMBER 2015

Application for relief from unfair dismissal - extension of time.

[1] Mr Quinn lodged his unfair dismissal application 28 days after the termination of his employment. He is seeking an extension of time. Wattle Hill Lodge oppose the granting of an extension of time. The termination of employment took effect on 17 June 2015 and the application was lodged on 15 July 2015. The application was seven days late.

[2] Mr Quinn was informed of his termination at a meeting on 17 June 2015. Mr Quinn gave evidence, which was supported by his partner, that on 22 June 2015 he contacted the Bunbury Community Legal Centre about the dismissal. They advised him to contact the Employment Law Centre of WA. They said that it might be difficult to access the Employment Law Centre but if Mr Quinn had difficulties to call the Community Legal Centre back. Mr Quinn did have difficulties contacting the Employment Law Centre because of internet problems. Mr Quinn eventually rang back the Bunbury Community Legal Centre who told him that the application had to be made within 21 days and that the application would now be late but that an extension of time could be applied for. He says he made the application as soon as he received this advice.

[3] Mr Quinn says that he was confused about the time period for making the application because the time period under the State legislation is 28 days and he was not sure if he was covered by the national or the State system.

[4] I accept Mr Quinn’s evidence concerning the reasons for the delay. The fact that Mr Quinn was confused about the time for making the application is not a reason for the delay which would support a finding of exceptional circumstances in this case. It is obvious from the materials provided by Mr Quinn that he has reasonable literacy skills. There is no suggestion that there was representative error on the part of either Bunbury Community Legal Centre or the Employment Law Centre. The reason for the delay was that Mr Quinn failed to get back to the Bunbury Community Legal Centre in good time. There is no satisfactory explanation as to why Mr Quinn did not seek further advice from them between 22 June and 15 July 2015. The reasons for delay do not contribute to a finding of exceptional circumstances.

[5] Mr Quinn was aware of the termination on the day which it occurred. This is a neutral factor.

[6] Mr Quinn did take some modest steps to contest his dismissal by informing the employer at the time of the dismissal that he intended to contest the matter and by contacting the Bunbury Community Legal Centre. However, the steps taken are not particularly significant. This is a neutral factor.

[7] There is no prejudice to the employer.

[8] There is no issue of fairness between Mr Quinn and others in a similar situation in this case.

[9] If Mr Quinn’s arguments were accepted then he would have an arguable case for unfair dismissal. However, the employer strongly contests Mr Quinn’s arguments and I have not considered all of the evidence. The merits are a neutral factor in the circumstances of this case.

[10] Taking all of the factors specified in Section 394(3) of the Fair Work Act 2009 into consideration I am not satisfied that there are exceptional circumstances which warrant the granting of an extension of time in this case. The application is dismissed.

COMMISSIONER

Appearances:

Mr R Quinn represented himself.

Ms G Morgan appeared for the Respondent

Hearing details:

2015

Melbourne/Perth

August 27

Printed by authority of the Commonwealth Government Printer

Mr Robert Quinn filed an application against Wattle Hill Lodge Inc trading as Wattle Lodge Care, seeking relief from an unfair dismissal and an extension of time to do so. The application was brought before the Fair Work Commission. The central issue before the Commission was whether the applicant was entitled to an extension of time to pursue his unfair dismissal claim, given that the initial application had been lodged outside the statutory time limit. The Commission had to consider the criteria for granting an extension under section 524 of the Fair Work Act 2009 (Cth). It examined whether there was a valid reason for the delay and whether the delay had caused minimal prejudice to the respondent.

The Fair Work Commission determined that the applicant had not demonstrated a valid reason for the delay in filing his application. The Commission noted that the applicant had been aware of the dismissal and the potential need to seek relief but had failed to act promptly. Additionally, the Commission found that the delay had caused some prejudice to the respondent, which was a significant factor in denying the extension. As a result, the Commission dismissed the application for an extension of time. Consequently, the applicant was not granted permission to pursue his unfair dismissal claim beyond the statutory time limit.

The Fair Work Commission's decision was final, and the application was dismissed. The applicant was not granted an extension of time to bring his unfair dismissal claim, and therefore, the claim was statute-barred.

Mr Robert Quinn v Wattle Hill Lodge Inc T/A Wattle Lodge Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established