Mr Thomas Bee v Wesfarmers Kleenheat Gas Pty Ltd

[2009] FWA 1471

Note: An appeal pursuant to s.604 (C2009/11322) was lodged against this decision.

[2009] FWA 1471

FAIR WORK AUSTRALIA

DECISION

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

Mr Thomas Bee
v
Wesfarmers Kleenheat Gas Pty Ltd
(U2009/11973)

COMMISSIONER WILLIAMS PERTH, 2 DECEMBER 2009

s. 394 - Termination of employment.

[1] Mr T Bee, the applicant in this matter has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Wesfarmers Kleenheat Gas Pty Ltd.

[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.

[3] The applicant was terminated on 24 August 2009. The application was lodged on 9 September 2009.

[4] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[5] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 below.

s. 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.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[6] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

Are there are exceptional circumstances?

The reason for the delay

[7] It is submitted that the reason the application was lodged out of time was due to a clerical error apparently by the applicants Union.

Whether the person first became aware of the dismissal after it had taken effect

[8] The applicant was aware of his dismissal on 24 August 2009 the day it took effect.

Any action taken by the person to dispute the dismissal

[9] The applicant submits he approached his Union about the matter.

Prejudice to the employer (including prejudice caused by the delay)

[10] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[11] Nothing has been submitted in favour of the extension of time regarding the merits of the applicants case.

[12] The respondent says the applicant, a truck driver, ran his vehicle off the road causing the vehicle serious damage. The respondent says that following an investigation and interviews with the applicant it concluded he was at fault and this warranted termination.

Fairness as between the person and other persons in a similar position.

[13] Neither party has put a submission on this factor.

Conclusion

[14] The onus is on the applicant to persuade Fair Work Australia that a further period should be allowed for him to make this application beyond the statutory time limit of 14 days. I have considered the information provided and the submissions by both parties on the relevant factors and am not satisfied that here there were exceptional circumstances.

[15] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before Fair Work Australia and is dismissed.

COMMISSIONER

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