Mr Sajid Ali v Chandler Macleod Group Limited

[2013] FWC 7899

[2013] FWC 7899 [Note: An appeal pursuant to s.604 (C2015/8152) was lodged against this decision - refer to Full Bench decision dated 1 February 2016 [[2016] FWCFB 373] for result of appeal.]

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Sajid Ali
v
Chandler Macleod Group Limited
(U2013/10785)

COMMISSIONER CLOGHAN PERTH, 10 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 21 June 2013, Mr Sajid Ali (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Chandler Macleod Group Ltd T/A Chandler Macleod Group (Employer).

[2] The Applicant states in his application that his employment ceased on 12 April 2013. The Employer states in its response to Mr Ali’s application that his employment ended on 13 February 2013 or in the alternative, 13 March 2013.

[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 the application to be made within 21 days after the dismissal took effect (see paragraph 394(2) of the FW Act).

[5] Mr Ali has not made the 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, 21 June 2013), if it is satisfied, pursuant to s.394(3) of the FW Act, 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.”

[6] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Mr Ali to file his application on 21 June 2013 by way of written submissions.

[7] On 30 August 2013, I issued procedural directions to enable the Applicant to make a submission pursuant to s.394(3) of the FW Act that exceptional circumstances existed for the Commission to be satisfied that the application be lodged on 21 June 2013.

[8] The Applicant was required to make a submission on 16 September 2013.

[9] On 16 September 2013, the Applicant attended the Commission and made a submission consisting of six (6) dot points. Notwithstanding its brevity, a copy was forwarded to the Employer for a response on 17 September 2013.

[10] On 19 September 2013, the Applicant sought an unspecified extension of time to make a further submission. My Associate advised the Applicant that I was not prepared to extend the timeline to make a further submission. My Associate also advised the Applicant that the procedural directions enabled him to respond to the Employer’s submission objecting to the extension of time.

[11] The Employer provided its response to the Applicant’s submission on 30 September 2013. The Applicant did not avail himself of the opportunity to respond to the Employer’s submission by 4:00 pm on 4 October 2013.

CONSIDERATION

[12] The Applicant states that he was a casual employee and employed at a bakery since 16 February 2012.

[13] The Employer submits that the Applicant’s employment ceased on 13 February 2013. However, the Employer acknowledges that the Applicant attended the bakery on 18, 21 and 26 February 2013 seeking work.

[14] On 13 March 2013, the Employer states “the police were called to the Respondent’s Canning Vale site”. Consequently, the Employer asserts that there would have been no doubt in the Applicant’s mind that his employment had been terminated on 13 March 2013.

[15] With respect to the criteria in subsection 394(3) of the FW Act, the Applicant:

● has not provided a reason for the delay in filing the application whether it was 49, 79 or 107 days beyond the standard time limit for filing the application;

● does not indicate when he became aware of his dismissal. However, the Employer indicates the Applicant was made aware at a meeting on 13 February 2013 that he would not be given any further shifts. In my view, it is safe to state he became aware of his dismissal on 13 March 2013 when police were called to remove him from the Employer’s premises;

● has not provided any documentation or submission to the Commission to demonstrate that he had disputed his dismissal other than this application;

● has not made any submission as to any prejudice to the Employer. The Employer asserts that because of the delay, the Employer has suffered prejudice caused by the delay. I have adopted a neutral approach to this criterion when considering whether there are exceptional circumstances to warrant the application being made on 21 June 2013;

● has not made any submissions as to the merits of the application. The Employer submits why the application lacks merit. Notwithstanding the Employer’s contentions, I adopt a neutral approach to this criterion when considering whether there are exceptional circumstances to warrant the application being made on 21 June 2013; and

● has not made a submission as to fairness between the Applicant and other persons in a similar position. I consider the criterion not applicable to the circumstances of the application.

CONCLUSION

[16] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed for the application to be filed beyond the statutory timeline of 21 days after the dismissal took effect. Accordingly, the application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 16 September 2013.

Respondent: 30 September 2013.

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