Mr Timothy Matenga v FSG Australia

[2013] FWC 3619

[2013] FWC 3619

FAIR WORK COMMISSION

DECISION

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

Mr Timothy Matenga
v
FSG Australia
(U2013/7639)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 6 JUNE 2013

Summary: application for an unfair dismissal remedy - whether to exercise discretion to allow the application in a different period - s.394(3) of the Act - dismissal given effect by verbal direction and then subsequent written confirmation.

[1] Mr Timothy Matenga (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 19 March 2013, seeking an unfair dismissal remedy. The Applicant had been dismissed from his employment at FSG Australia (“the Respondent”) on 16 January 2013. The dismissal took effect that same day, according to the Applicant. The Applicant claims however that he did not receive the dismissal letter until 22 January 2013, when the letter was delivered to him by registered post. The Applicant, however, had been verbally advised of his termination on 16 January 2013.

[2] It appears that the dismissal allegedly concerned the Applicant’s absence from a shift without advising or notifying of changes to his roster. The Applicant at the time was the subject of an ongoing interview process concerning claiming for hours he did not work. This is a matter of contest as the Applicant was a carer for impaired persons and his hours, so the Applicant says, frequently extended beyond those formerly rostered.

[3] Assuming the date of dismissal was 16 January 2013, the application for an unfair dismissal remedy under section 394 of the Act was made some 40 days out of time in respect of the requirement of s.394(2)(a) of the Act.

[4] Section 394(2)(a) of the Act provides as follows:

(2) The application must be made:

(a) within 21 days after the dismissal took effect

[5] In light of this it is necessary for the Applicant to seek a favourable exercise of discretion under section 394(2)(b) of the Act. The exercise of discretion in this regard by the Fair Work Commission is a conditioned discretion, by virtue of the operation of s.394(3) of the Act. These provisions are as follows:

(2) The application must be made:

[...] ; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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] A hearing in relation to this matter was conducted on 4 June 2013 following the jurisdictional issue being agitated by the Respondent.

[7] Before considering the requirements for the exercise of discretion, it is necessary to establish the precise date on which the dismissal took effect.

[8] It is apparent from the Applicant’s own materials as filed that the decision of the employer to dismiss him from its employment was conveyed to him verbally on 16 January 2013. I do not dispute that the Applicant did not receive the formal written letter of dismissal until 22 January 2013.

[9] But nothing material turns upon this. The Applicant had made enquiries of the Respondent seeking the receipt of the letter of dismissal in the context of having been advised of his dismissal verbally on 16 January 2013. 1

[10] The dismissal took effect on the same day it was verbally advised.

[11] The Applicant was aware at all times that he had been dismissed by verbal direction given to him on 16 January 2013.

[12] The application was made, consequently, some 40 days beyond the date on which it should have been made to be consistent with requirements of s.394(2)(a) of the Act.

[13] Both the Applicant and the Respondent agreed that the application was made some 40 days after the 21 days stipulated at s.394(2)(a) of the Act.

(a) the reason for the delay

[14] The Applicant gave as his reasons for the delay the following:

• he had to access Centrelink payments following his dismissal;



• his was apprehensive; and



• he did not know where to start to make an application.

(b) whether the person first became aware of the dismissal after it had taken effect

[15] The Applicant was aware that his dismissal took effect on the day it was conveyed to him by telephone call from the Respondent’s Human Resources representative.

(c) any action taken by the person to dispute the dismissal

[16] In correspondence directed to the Respondent by the Applicant on 22 January 2013, 2 the Applicant stated that he did not challenge the dismissal and sought to negotiate some arrangements with the Respondent. Thus, the Applicant made took no steps to dispute the dismissal other than by making this application.

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

[17] The Respondent contended that some issues of prejudice would arise, as a consequence of turnover in the workforce in particular.

(e) the merits of the application

[18] I have not had occasion to explore or enquire into the merits of the application. As a consequence, the merits of the application have only a neutral effect upon my considerations.

(f) fairness as between the person and other persons in a similar position

[19] The Applicant sought to invoke no other reference to any other employees and no other wider argument was made in respect of this particular provision.

Conclusion

[20] The Applicant was not able to provide any explanation of any substance for the delay in making his application under s.394 of the Act for an unfair dismissal remedy. As set out above, the only explanation provided by the Applicant was that he was engaged in Centrelink processes and otherwise was apprehensive about making an application let alone how to go about making such an application. In the end, however, the Applicant seems to have overcome both these limitations and made an application. How that transformation took effect remains unknown.

[21] In all, the Applicant was without an explanation for the delay in making his application and the discretion for the purposes of s.394(2)(b) of the Act cannot be exercised in his favour.

[22] The Applicant’s application for an unfair dismissal remedy is therefore itself dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T. Matenga, Applicant.

Mr M. Corrigan, for the Respondent.

Hearing details:

Brisbane

2013

4 June

 1   Exhibit A1 & Exhibit A2.

 2   Exhibit A2.

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