Mr Scott Daley v CBI Constructors Pty Ltd

[2013] FWC 9762

[2013] FWC 9762

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Scott Daley
v
CBI Constructors Pty Ltd
(U2013/13922)

COMMISSIONER CLOGHAN PERTH, 12 DECEMBER 2013

Unfair dismissal.

[1] On 25 September 2013, Mr Scott Daley (Mr Daley or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, CBI Constructors Pty Ltd (Employer).

[2] Mr Daley’s employment was terminated with immediate effect on 1 September 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 Daley 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, 25 September 2013), if it 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.

[6] On 29 October 2013, by way of a Statement and Directions, I invited the Applicant to make submissions to satisfy the Commission that exceptional circumstances existed to allow the application to be made on 25 September 2013. The Employer was given the opportunity to respond to those submissions. Mr Daley was, in turn, given the opportunity to respond to the Employer’s submission.

[7] The Applicant did not make any submission to the Commission.

[8] I wrote to Mr Daley on 4 December 2013 advising him that should I not receive his submission by 11 December 2013 I would dismiss his application in accordance with paragraph 399A(1)(b) of the FW Act.

[9] The Applicant did not make any submission to the Commission by 11 December 2013.

[10] In the absence of any submission by the Applicant or advice to the Commission why a submission could not be made, I have considered the application on the basis of the documentary material already provided by Mr Daley. Having considered this material, I am not satisfied that exceptional circumstances existed to allow the application to be made after the standard timeline of 21 days.

[11] The application will be dismissed. An Order to this effect is issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

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