Mr Stephen Rend v Thomas Borthwick & Sons (Australia) Pty Limited
[2010] FWA 8602
•30 NOVEMBER 2010
[2010] FWA 8602 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Stephen Rend
v
Thomas Borthwick & Sons (Australia) Pty Limited
(U2010/11731)
COMMISSIONER SPENCER | BRISBANE, 30 NOVEMBER 2010 |
Termination of employment - jurisdictional objection - extension of time.
Introduction
[1] Mr Stephen Rend (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming he was unfairly dismissed from Thomas Borthwick & Sons (Australia) Pty Limited (the Respondent). Pursuant to s.394(2) of the Act, the application for relief must be made within 14 days after the dismissal took effect. The Applicant lodged his application out of time. This determination relates to the jurisdictional issue as to whether an extension of time should be granted by Fair Work Australia (FWA) to allow the application to proceed.
[2] The Applicant indicated in his application that the date he was notified of the dismissal, and the date it took effect, was 6 July 2010.
[3] The Applicant was self-represented. The Respondent was represented by Mr Greg Sentinella of the Australian Meat Industry Council.
[4] The Respondent filed a jurisdictional objection that the application was lodged out of time. The s.394 application was filed on 19 August 2010, some 44 days from the date of dismissal and 30 days out of time.
[5] Directions were issued for the filing of material, after a Directions conference took place. The Applicant provided submissions in relation to this jurisdictional objection. The Respondent’s representative, however, did not accord with the Directions. An unsatifactory submission was made, via email stating simply, “We would submit that there are no exceptional circumstances to allow for an extension of time. We therefore seek that the matter be dismissed.”
[6] The parties, as part of the Directions, were requested to provide submissions as to whether they sought the jurisdictional matter to be determined on the papers or whether a hearing was required. The Applicant submitted that a hearing was not required; the Respondent did not make any submissions.
[7] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Legislation
[8] FWA is required to consider whether an application is made within time, as well as whether the Applicant was protected from unfair dismissal, prior to considering the merits of the application. Section 394(3) of the Act authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances, taking into account specific matters.
[9] The relevant sections of the Act are as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(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
(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.
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
…
Consideration
[10] The following provides an assessment of each of the provisions in s.394(3) of the Act to examine whether exceptional circumstances exist to allow for an extension of time:
s.394(3)(a) the reason for the delay
[11] The Applicant submitted that there were two reasons for the delay in lodging his application. He submitted that at the time of his dismissal, he was not aware of his rights in relation to the unfair dismissal remedies and the associated time limit that applied in lodging an unfair dismissal application.
[12] The Applicant further submitted that as a result of his dismissal, he had considerable financial stress, including that he was not sure whether he would be able to continue to pay for his rental accommodation. He submitted that his initial focus, subsequent to the dismissal, was to address his living arrangements, specifically whether he would be able to continue residing at his current address.
[13] The Applicant submitted that he did not have the financial resources to consult a solicitor; however, he did later seek advice from the Mackay Regional Community Legal Centre on 19 August 2010. The Applicant stated that he made the unfair dismissal application on this same day that he sought legal advice and was made aware of his rights.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[14] The Applicant submitted, and stated in his application, that he was notified of the dismissal the same date that it took effect, on 6 July 2010. The termination of employment was based on alleged gross misconduct.
s.394(3)(c) any action taken by the person to dispute the dismissal
[15] No action was taken by the Applicant to dispute the dismissal, until 44 days after its effect, when he sought legal advice and made the application to Fair Work Australia.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[16] No submissions were received from the Respondent, accordingly this issue was not addressed. The Applicant submitted that there would be no prejudice to the employer in granting the extension of time.
[17] The Applicant’s submissions do not indicate that he notified the Respondent during the 44 day period at any time that he was disputing the dismissal.
s.394(3)(e) the merits of the application
[18] The Respondent did not provide any submissions on this issue. However there is disparity on the merits of the application between the Applicant’s reasoning objecting to the dismissal in the application and the Respondent’s reasons in the outline in the objection.
s.394(3)(f) fairness as between the person and other persons in a similar position
[19] On the material provided, this consideration is irrelevant to this matter.
Conclusion
[20] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend a period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 1 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery2) as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.”
[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”
[21] It is determined that the Applicant has not been able to demonstrate that there are exceptional circumstances to warrant an extension of time. Whilst the Applicant has submitted he experienced hardship as a result of the termination of his employment, he has not been able to adequately account for the delay, nor are the reasons presented commensurate with exceptional circumstances.
[22] It is determined, pursuant to s.394(3), that the time for the Applicant to make this unfair dismissal application cannot be extended, as no exceptional circumstances exist. The s.394 application is therefore dismissed. I Order accordingly.
COMMISSIONER
1 [2009] FWA 1638.
2 [2010] FWA 1394.
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