Mr Terry Parker v Cetel Communications

[2012] FWA 6980

[2012] FWA 6980

FAIR WORK AUSTRALIA

DECISION

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

Mr Terry Parker
v
Cetel Communications
(U2012/1236)

COMMISSIONER ROE MELBOURNE, 15 AUGUST 2012

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Mr Terry Parker (the Applicant) in respect of dismissal by Cetel Communications Pty Ltd (the Respondent). The Respondent advised that they did not oppose the Application. The parties agreed to my suggestion that the matter be determined on the basis of the written material already provided to FWA.

[2] The Respondent on the F3 Employer Response Form says that the Applicant was employed from 8 January 2011 until he resigned on 9 May 2012. The Applicant submits that it was in fact a termination or a constructive dismissal. It is not in contention that the Application was signed on 24 May 2012 and it was received by FWA on 25 May 2012. If the date of termination was 9 May 2012 then the Application is one day out of time.

[3] The Applicant says that he tried to lodge the application on 24 May 2012 which was the same day as he had a conversation with the Respondent which failed to resolve the issues surrounding his employment with the Respondent. He returned home and tried to make an unfair dismissal application on line but was unable to affect the payment on line due to lack of skill. On the following day his wife was able to lodge the Application.

[4] If the Application had been lodged on 24 May 2012 there is no doubt the Application would have been within time.

[5] The Respondent’s diary notes attached to the F3 Employer Response Form state in respect to the alleged resignation on 9 May 2012 that:

“At that point I said to Terry (the Applicant) that I don’t know what to do from here as I cannot have him speaking like that to anybody let alone his boss and that Ryan didn’t want him back because of his aggressive behaviour. It was at this point when Terry said I will not work with that snotty nose little shit anyway.... Oh! F*** it I will find another job somewhere else. He then said he would call me back later after he had calmed down. Which he did not.”

[6] The Respondent’s diary notes state in respect to Friday 11 May 2012 that:

“Terry rang and said that he wanted to talk as he felt that he had been given the sack which I explained that he was the one that resigned by saying Oh! F*** it I will find another job. I told him that I would be back in the office about 3pm and to come and talk about it then. I waited at the office till 5.30 no sign of Terry.”

[7] The Respondent’s diary notes confirm that there was an in person discussion between the Respondent and the Applicant on 24 May 2012. The diary notes report that the Applicant told the Respondent that he could not be sacked or resign whilst on Workcover. When the matter was not resolved through discussion the Applicant said that he would lodge an unfair dismissal application.

Finding that the Application is not out of time.

[8] I am satisfied from the material provided by the Applicant and the Respondent to date that it is more likely than not that the end of the employment relationship did not occur until after 11 May 2012 and that the Application is therefore not out of time. The evidence does not suggest that either the Respondent or the Applicant were clear what the outcome of the discussion on 9 May 2012 meant for the continuation of the employment relationship. That discussion ended, according to the Respondent with: “He then said he would call me back later after he had calmed down.” This does not suggest the matter was resolved at that time. The evidence is that there was further discussion about the continuation or cessation of the employment relationship on 11 May 2012. That conversation reinforced the uncertainty about the situation and concluded with the employer agreeing to keep the options open and to further discuss the matter: “I told him that I would be back in the office about 3pm and to come and talk about it then.” Of course I have not had all of the evidence before me and that will only occur when and if the merits of the case are determined. However, I consider that there is sufficient evidence before me to conclude that it is more likely than not that the Application is not out of time.

Consideration of the alternative: do exceptional circumstances exist justifying an extension of time?

[9] In the event that I am wrong in this conclusion I would need to consider whether there are exceptional circumstances justifying the granting of a one day extension.

[10] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:

“(2) [Standard time limit] 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).”

[11] Subsection 394(3) provides:

“(3) [Extended time limit] 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.”

[12] I turn to consider the particular factors specified in s. 394(3) of the FW Act.

s. 394(3)(a)

[13] The Applicant submits that the reason for the delay was that the Applicant was unclear about whether or not the employment relationship had been terminated. He did not believe that he had resigned and he was unsure as to whether or not he had been terminated, although he thought that he probably had been. The Applicant made a number of attempts to clarify and resolve the situation with the employer. When it was clear on 24 May 2012 that the employment relationship was at an end he then lodged an Application the next day. The delay of one day was due to the Applicant’s inability to complete the on line application due to lack of computer skills when it came to making the payment on line. Given that the Respondent does not oppose the Application there is no reason to doubt the veracity of the Applicant’s reasons.

[14] Taken as a whole the reasons for delay proffered by the Applicant are an acceptable explanation which makes it equitable to extend the time. The reasons are ones that are not normal or usual.

[15] I take into account that the Application is only a short period of time late. It has clearly been established that an application being only one day late does not in itself constitute an exceptional circumstance. 1 However, in my view it is a relevant consideration.

s. 394(3)(b)

[16] There is considerable doubt as to when the Applicant was dismissed or resigned. It is likely that the Applicant first became aware of the dismissal after the Respondent employer asserts it had taken effect.

s. 394(3)(c)

[17] I am satisfied that the Applicant took some steps to challenge the dismissal within a reasonable time frame. The Applicant did not idly let time slip by. Most relevantly the Respondent was in no doubt that the Applicant was challenging the termination during the period after it was alleged to have occurred and was clearly advised that an unfair dismissal claim would be made. It also appears that the Applicant failed to take up two opportunities to further discuss the future of his employment with the employer.

s. 394(3)(d)

[18] I am satisfied that the fact that the delay in making the Application was a single day is a relevant consideration in respect to the prejudice to the Respondent including the prejudice caused by delay. Witness recollections will not have faded. The notice to the Respondent that the Applicant was contesting the dismissal by an Application to Fair Work Australia was only one day later than would have otherwise occurred. I am not satisfied that there is any prejudice to the Respondent caused by the delay in this case. I am not satisfied that there is any other prejudice to the Respondent other than the usual prejudice that accompanies any grant of an extension of time.

s. 394(3)(e)

[19] I am satisfied that there is an arguable case that the Applicant was terminated at the initiative of the employer. There is also an arguable case that the Applicant terminated the relationship. Neither side has been required to put forward its detailed case about the merits. It would be inappropriate for me to make any definitive findings about the merits of the case. However, I am satisfied that this is not one of those cases where I should be concerned that the substantive application lacks merit. I cannot conclude that the application is without merit.

s. 394(3)(f)

[20] I do not consider that the factor in s. 394(3)(f) is relevant in the present case. As far as I am aware there are no other employees affected.

Finding in respect to exceptional circumstances

[21] In the event that the Application in this matter is found to be out of time I would find that exceptional circumstances do exist in this case which are sufficient to justify the granting of an extension of time for the making of the Application of one day.

Conclusion

[22] The Section 394 Application for unfair dismissal remedy will now proceed to be determined by a member of the Tribunal.

COMMISSIONER

 1   Wood v Woolworths Limited T/A Woolworths Supermarkets[2010] FWA 9463 10 December 2010.

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