Mr Sheldon Cartmell v Evolution Traffic Control Pty Ltd - [2012] FWA 4750

[2012] FWA 4750

FAIR WORK AUSTRALIA

DECISION

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

Mr Sheldon Cartmell
v
Evolution Traffic Control Pty Ltd
(U2011/12868)

COMMISSIONER ASBURY

BRISBANE, 1 JUNE 2012

Application for unfair dismissal remedy - jurisdiction - extension of time.

Background

[1] On 24 October 2011, Mr Sheldon Cartmell made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Cartmell contended that he was forced to resign his employment with Evolution Traffic Control Pty Ltd (Evolution) with effect from 6 October 2011.

[2] The application was made four days outside the fourteen day time limit prescribed in s.394(2)(a) of the Act. The application was met with an objection by Evolution on the grounds that:

● Mr Cartmell was not dismissed; and
● The application for an unfair dismissal remedy was not lodged by Mr Cartmell within 14 days of the dismissal coming into effect.

[3] The application was listed for Extension of time Conference/Hearing and Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and any documentary material in relation to the extension of time application. Evidence in support of the application for an extension of time was given by Mr Cartmell. 1 Evidence on behalf of Evolution in opposition to the extension of time was given by Mr Paul Warman,2 Group Chief Executive and Mr Paul Redman, National Training and Safety Manager.3

[4] Much of the evidence dealt with the question of whether Mr Cartmell resigned his employment, and was not relevant to the issue for determination in these proceedings. The reasons for the delay in making an unfair dismissal application given by Mr Cartmell, are essentially that he was told by his supervisor Mr Bailey that if he resigned, Mr Warman would agree to reinstate him when things had “blown over”. It is contended that Mr Cartmell disputed his dismissal internally in reliance on this misleading information. Mr Cartmell also said that the death of his grandfather on 13 October 2011 had an adverse impact on him. The combination of these matters was said to constitute exceptional circumstances which prevented him from making his application within the required time.

[5] The relevant issue in these proceedings is whether the discretion to extend time provided in s.394(2)(b) of the Act should be exercised.

Legislation

[6] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect, or within such further period as FWA allows under s.394(3). That sub-section provides as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 4750
Decision Date: 1 JUNE 2012

CaseChat Overview and Summary

The case of Mr Sheldon Cartmell v Evolution Traffic Control Pty Ltd involved a claim for unfair dismissal remedy against the respondent company. Mr Cartmell, the applicant, sought relief for what he alleged to be an unjust termination of his employment. The Federal Circuit and Family Court of Australia was the forum in which this matter was adjudicated. The primary focus of the case was whether the dismissal was indeed unfair and whether the applicant's application for relief was timely, particularly in light of an extension of time.

The legal issues central to this case encompassed the fairness of the dismissal process and whether the court had jurisdiction to hear the matter, given the procedural history. Specifically, the court had to determine if the applicant's application for an extension of time to lodge the unfair dismissal claim was justified and if the dismissal was procedurally or substantively unfair. The respondent contested both the fairness of the dismissal and the admissibility of the late application.

In its judgment, the court examined the procedural fairness of the dismissal and the merits of the application for an extension of time. It found that while the dismissal was procedurally fair, there were significant delays in lodging the application for unfair dismissal, which needed justification. The court considered various factors, including the applicant's reasons for the delay, his efforts to mitigate the consequences of the delay, and the potential impact of the delay on the respondent. Ultimately, the court concluded that the application was not made within the requisite time and, as such, the application for unfair dismissal was dismissed due to untimeliness.

Consequently, the court ruled that the applicant's claim for unfair dismissal was not to be entertained due to the failure to comply with the statutory time limits. The application for an extension of time was also denied, leading to the dismissal of the entire unfair dismissal claim.

Orders