Mr Wayne David Morton v Leighton Contractors Pty Ltd
[2009] FWA 1506
•3 DECEMBER 2009
[2009] FWA 1506 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
v
Leighton Contractors Pty Ltd
(C2009/10629)
Building, metal and civil construction industries | |
COMMISSIONER WILLIAMS | PERTH, 3 DECEMBER 2009 |
s. 365 - Termination of employment.
[1] Mr Wayne Morton, the applicant in this matter has applied to Fair Work Australia (FWA) for FWA to deal with a general protections dispute under s. 365 of the Fair Work Act 2009 (the Act). The respondent is Leighton Contractors Pty Ltd.
[2] Section 366 deals with the time for making such applications:
“s.366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.”
[3] The applicant was terminated on 1 July 2009. The application was lodged on 2 October 2009. The application has been lodged more than 60 days after the dismissal took effect and so because of s. 366(1) it cannot proceed unless FWA allows a further period for the application to be made.
[4] A further period for an application such as this to be made can only be allowed if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 366 (2) above.
[5] Submissions have been provided by the parties regarding allowing a further period for this application to be made.
Are there exceptional circumstances?
The reason for the delay
[6] The solicitors for the applicant in support of the extension of time for making this application submitted that the reason for the delay was that the applicant was involved in a motor vehicle accident on 28 May 2009 and as a consequence sought medical investigation and has been undergoing a series of intensive investigations under a neurologist which were completed in September 2009 resulting in a diagnosis of epilepsy.
[7] The accident was investigated by the police who have in light of the medical information confirmed they are now not proceeding with any criminal charges against the applicant.
[8] The applicant’s insurer also investigated the accident and this claim has still not been finalised.
[9] The applicant at all times advised his employer of the situation and did not immediately return to work.
[10] On 1 July the applicant was dismissed with the employer citing redundancy as the grounds for termination.
[11] As a consequence of the dismissal the applicant is under financial pressure and has had to place his house on the market for sale.
[12] In reply to the applicants submissions regarding the reason for delay the respondent questions what evidence there is in terms of medical reports that would demonstrate that the applicant’s health was so affected that it rendered him unable to make an application such as this one in the 60 day time required. The respondent notes that the termination occurred 32 days after the vehicle accident and that in total some 93 days passed between the date of the accident and the lodging of this application and that throughout part of that period it appears that the applicant had been receiving legal advice. The respondent argues that the lodging of an application such as this is a simple matter.
[13] The respondent argues that a police investigation into a motor vehicle accident is not unusual nor is an enquiry by an insurance company. In addition the respondent argues that the financial consequences of termination including the need of the applicant to sell his house are not uncommon consequences for employees who lose their jobs.
Any action taken by the person to dispute the dismissal
[14] There is no submission that the applicant has taken any other steps to dispute his termination of employment other than this application.
Prejudice to the employer (including prejudice caused by the delay)
[15] No submissions of substance had been made regarding this factor.
The merits of the application
[16] The respondents says the applicant was working on a project on Cockatoo Island as a supervisor but that on 24 April 2009 all work on the project ceased and has not since recommenced and as result the applicant’s position became redundant. The respondent says it sought to find alternative employment for the applicant however this was unsuccessful.
[17] The applicant however states in the application and submissions, although without any supporting information, that the termination was not a bone fide redundancy as the position was immediately filled by another employee.
Fairness as between the person and other persons in a similar position.
[18] No submissions of substance had been made regarding this factor.
Conclusion
[19] The onus is on the applicant to persuade Fair Work Australia that a further period should be allowed to make this application beyond the statutory time limit of 60 days. I have considered the information provided and the submissions by both parties on the relevant factors.
[20] The consequences for the applicant of losing his job such as financial difficulties and the need to sell his house are not in my view exceptional circumstances.
[21] I accept that the applicant has been undergoing significant medical treatment since the motor vehicle accident but note as the respondent pointed out that this event occurred 32 days prior to his termination. Since his termination he has had another 60 days within which to make this application. However the application was not made within those 60 days and in fact was not made until a further month had passed.
[22] The submissions made on behalf of the applicant regarding the applicants being so affected by the aftermath of the motor vehicle accident that he was unable to make this application within time are not supported by any documentary evidence or sworn statements. On balance then I do not accept that the consequences of the motor vehicle accident were such that it explains the full period of the delayed lodgement in this case.
[23] In this instance then the lack of a reason for the delay in the lodgement that explains the full period of that delay and the lack of any other action taken by the applicant to dispute the dismissal all count against granting an extension of time. The merits of the application in this instance are neutral as they can only be determined following a full hearing of the matter.
[24] Taking into account all of the factors I am not satisfied that there are exceptional circumstances that warrant allowing a further period for the making of this application.
[25] The application is not properly before Fair Work Australia and is dismissed.
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