Nathan Moses v Tim Duross T/A Your Friend in the Trade

[2013] FWC 632

[2013] FWC 632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Moses
v
Tim Duross T/A Your Friend in the Trade
(U2012/15064)

COMMISSIONER DEEGAN CANBERRA, 31 JANUARY 2013

Termination of employment - jurisdictional objection - extension of time.

[1] On 31 October 2012 Mr Nathan Moses (the applicant) lodged, pursuant to s.394 of the Fair Work Act 2009 (the Act), an application for unfair dismissal remedy in relation to the termination of his employment by Tim Duross trading as Your Friend in the Trade (the employer). The employer is a small business employing only one apprentice following the termination of the applicant’s employment.

[2] The matter was listed for a conciliation conference which was cancelled as the employer refused to take part as the application had not been made within 14 days of the date on which the dismissal took effect, as required by s.394(2) of the Act.

[3] The applicant does not dispute that the dismissal took effect on 15 October 2012 or that the application was lodged on 31 October 2012, two days after the expiration of the 14 day time limit. It is therefore necessary for a determination to be made as to whether the application will be accepted.

[4] Initially it was intended that this matter would be dealt with on the papers. The parties were directed to file any witness statements or submissions concerning the out of time issue. Attached to these directions was an extract of the relevant sections of the legislation. The applicant failed to comply with those directions advising that he had not understood the requirement. Further time was allowed for the filing of submissions by the applicant.

[5] On 18 January 2013, the applicant filed submissions, within the additional time allowed. These submissions dealt with the merits of the matter and did not address the matters set out in s.394(3) of the Act, despite the applicant being directed to, and provided with, a copy of the relevant provisions of the legislation. As it appeared that the applicant did not understand the nature of the question to be determined, the matter was immediately listed for a hearing and a notice of listing was issued.

[6] Later on that day, the applicant provided, by email, an additional submission in the following terms:

• I was not aware that Mr Duross was not intending on providing me with the appropriate termination payment or any of my annual leave entitlements until I received the payment on 19 October.  I had discussions with Mr Duross after being fired and he had assured me that he would be processing my final payment into my account. I did not realise that this would not cover my annual leave entitlements or severance payment.



• I was not aware of my rights to lodge a complaint and that there was a time limit for me to do so until I spoke to a family friend who is lawyer, and he advised me of my rights.

[7] Despite the provision of the additional information, as the applicant was self-represented, I determined to proceed to the hearing to allow him every opportunity to put his case as fully as possible.

[8] At the hearing on 29 January 2013, there was no appearance for either the applicant or the employer. Enquiries elicited a response from the applicant to the effect that he did not understand the need to appear given that he had provided the additional information. The employer also appeared to have misunderstood the notification of the listing. Consequently, the hearing was cancelled.

[9] As it appears that the applicant is content for the matter to proceed on the basis of the information he has supplied in writing, I intend to deal with the question of whether further time should be allowed on the papers. Given the brief detail provided by the applicant, I do not consider it necessary to seek a response from the employer.

[10] Section 394 of the Act provides as follows:

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.

(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.

[11] The only reasons given by the applicant for his failure to file within the prescribed time period are that he was unaware of his rights and had no intention of making an application until his employer did not pay his severance or outstanding leave entitlements.

[12] I am not satisfied that the reasons given by the applicant constitute exceptional circumstances. If the applicant did not receive the entitlements he was due on termination he is able to pursue a claim for these through the Fair Work Ombudsman. Not being aware of the requirement to file within 14 days is not an exceptional circumstance. So far as the merits of the substantive matter are concerned, I make no finding other than that I am satisfied that it is not totally without merit. The applicant does not claim to have disputed his dismissal with his employer. The matter at s.394(3)(f) has no application on the facts of this case.

[13] Although the application was filed only two days out of time, this is not material given that I am unable to find any exceptional circumstance attaching to the failure to file within the prescribed time limit.

COMMISSIONER

Appearances:

No appearance for the Applicant

No appearance for the Respondent

Hearing details:

2013.

Canberra:

January 29.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR533583>