Mr Trevor Kelly v Dyno Nobel Asia Pacific Pty Limited

[2014] FWC 6449

[2014] FWC 6449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Trevor Kelly
v
Dyno Nobel Asia Pacific Pty Limited
(C2014/5623)

COMMISSIONER CLOGHAN PERTH, 16 SEPTEMBER 2014

Application to deal with contraventions involving dismissal.

[1] On 29 July 2014, Mr Trevor Kelly (Mr Kelly or Applicant) made application to the Fair Work Commission (Commission) to deal with a general protections dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (FW Act).

[2] The application was made pursuant to s.365 of the FW Act.

[3] Mr Kelly alleges that he was dismissed by Dyno Nobel Asia Pacific Pty Ltd (Employer).

[4] Mr Kelly states in his application that he was dismissed by the Employer on 30 June 2014.

[5] A preliminary jurisdictional issue arises in that the Applicant has not filed his application within the standard statutory time of 21 days as required in paragraph 366(1)(a) of the FW Act. Further, the Employer denies that it took any action against the Applicant in contravention of Part 3-1 General Protections of the FW Act.

The Fair Work Commission may allow a further period in which the application can be filed, pursuant to paragraph 366(1)(b) of the FW Act, if it is satisfied there are exceptional circumstances.

RELEVANT LEGISLATIVE FRAMEWORK

[6] Sections 365 and 366 of the FWA Act provide:

• 365 Application for FWC to deal with a dispute




If:

(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWC for FWC to deal with the dispute.

• 366 Time for application




(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] Prior to filing this application on 29 July 2014, the Applicant lodged an application in the Commission on 21 July 2014 pursuant to s.773 of the FW Act alleging that he was unlawfully dismissed by the Employer on 30 June 2014 (C2014/1298). In that application, Mr Kelly stated that he was able to make a general protections application.

[8] On 25 July 2014, I queried why Mr Kelly had made an application alleging unlawful termination, when it clearly states in the application that he is unable to do so, if he was able to make a general protections application, pursuant to s.365 of the FW Act.

[9] Mr Kelly’s representative advised the Commission on 30 July 2014 that it was a mistake on his behalf and the error was only discovered due to my email to him on 25 July 2014. Mr Kelly’s representative advised that he had lodged this application on 29 July 2014 and it was anticipated that he would lodge a notice of discontinuance for application C2014/1298.

[10] Mr Kelly lodged a notice of discontinuance on 10 August 2014.

RELEVANT BACKGROUND

[11] Mr Kelly commenced employment with the Employer on 30 October 2012.

[12] The Applicant was dismissed on 30 June 2014.

[13] The Applicant filed application C2014/1298 within the statutory timeframe of 21 days in accordance with paragraph 774(1)(a) of the FW Act.

[14] In application C2014/1298, the Applicant states that the reason or his dismissal is “redundancy”. The alleged contravention of s.772(1) of the FW Act is described as “personally affected by racial discrimination and harassment prior to redundancy” (my emphasis).

[15] This application has been made 8 days outside the statutory timeline.

[16] I now turn to the criteria in s.366(2) of the FW Act.

s.366(2)(a) - reason or the delay

[17] The simple reason for the delay is that Mr Kelly filed his application for unlawful termination of employment by mistake. A mistake is not exceptional. Unfortunately, it is a daily occurrence. If it was not for the Commission pointing out the error at that time, the delay in making this application could have been any number of days beyond the statutory timeline.

[18] In the alternative, if Mr Kelly had made application C2014/1298 more timely and the error pointed out earlier, the Applicant may have been able to make this application within the statutory timeline. However, this is speculation and the ability to be more definite is difficult in the absence of a date, in the submissions, when the Applicant returned to Australia from overseas.

[19] Finally, it has to be noted that the Applicant took a further four (4) days to file his application after being notified that he was unable to make application C2014/1298.

s.366(2)(b) - action taken by the person to dispute the dismissal

[20] Following correspondence from the Employer to Newman Employees on 25 June 2014, the Applicant sought clarification as to whether “he was to be personally affected by the proposed redundancies”. Obviously, at this stage there had been no redundancy. Consequently, Mr Kelly was making a general enquiry.

[21] On receiving written notice of termination of his employment due to redundancy, the Applicant telephoned the Employer and asked “why, given the Respondent’s selection criteria process, he had been selected [for redundancy]...”. As I understand the submission, Mr Kelly’s discussions with the Employer disputed the selection process for redundancy and not the substantive reason for his termination of employment, that is, redundancy.

s.366(2)(c) - prejudice to the employer

[22] I have adopted a neutral position to this criterion but note that from 29 July to 10 August 2014, the Employer had multiple applications by Mr Kelly concerning the same circumstances of his dismissal.

s.366(2)(d) - merits of the application

[23] The Applicant alleges that the Employer has taken adverse action against him on the basis that he was Irish, and in the alternative, because he exercised the right to make a complaint in relation to this employment.

[24] The Applicant alleges that his employment was terminated because he made a complaint on or about 3 November 2013 about “verbal racial abuse and threats that had been made to the Applicant by co-worker Lee Rohrich earlier that day”.

[25] The Applicant does not refer to any other instances or provided any documentation regarding alleged racial discrimination.

[26] The Employer advises that Mr Kelly was one of six (6) operator positions that were made redundant on the same day using an objective, merit-based selection process and matrix.

[27] To the extent of the Applicant’s submission, the explanation by Mr Kelly as to why he made the application, it is not overly persuasive especially in view of the lapse in time.

s.366(2)(e) - fairness

[28] I have adopted a neutral position with respect to this criterion.

CONCLUSION

[29] In conclusion, having considered the criteria in s.366(2) of the FW Act, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Kelly filing his application. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 20 August 2014

Respondent: 27 August 2014

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