Mr Trevor Edwards v Barbagallo T/A Southern Land Rover

[2014] FWC 4096

[2014] FWC 4096

FAIR WORK COMMISSION

DECISION

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

Mr Trevor Edwards
v
Barbagallo T/A Southern Land Rover
(U2014/6486)

COMMISSIONER CLOGHAN PERTH, 24 JUNE 2014

Unfair dismissal.

[1] On 11 April 2014, Mr Trevor Edwards (Mr Edwards or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Barbagallo T/A Southern Land Rover (Employer).

[2] Mr Edwards alleges he was dismissed by the Employer on 28 February 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Edwards has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 11 April 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; 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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 11 April 2014, I issued procedural directions to the parties on 13 May 2014 advising that the matter would be determined by written submissions.

CONSIDERATION

[8] The Applicant failed to provide any submissions in response to the directions. The Employer provided a response on 10 June 2014.

CONCLUSION

[9] Pursuant to paragraph 587 (3) (a) of the FW Act, this application is dismissed because of want of prosecution. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: no submissions made.

Respondent: 10 June 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552234>