Nathan Stone v Underground Services Australia

[2015] FWC 1624

[2015] FWC 1624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Stone
v
Underground Services Australia
(U2015/2142)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Nathan Stone alleged that the termination of his employment by Underground Services Australia on 10 December 2014 was unfair.

[2] His unfair dismissal application lodged on 8 January 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Are there exceptional circumstances?

(a) the reason for the delay;

[4] In his application, Mr Stone said that his application was late because of the Christmas holiday period and the close of business from 20 December 2014 to 5 January 2015. In his submissions filed in support of his application to extend time, Mr Stone advised that he thought the Commission’s office would be closed until January 2015 and he thought the 21 days were 21 working days. He said he sent his application by post and the post was delayed because of Christmas.

[5] Mr Stone was dismissed on 10 December 2014. His application should have been filed by 31 December 2014. The Commission’s office was not closed over the Christmas/New Year period except for public holidays. Applications on those days could have been made electronically. The Commission’s website contains information about the time limit for lodging applications. It is not unusual for employees to think that 21 days means 21 business days. Further, there is nothing unusual about the 21 days being impacted by public holidays.

[6] Mr Stone’s reasons for the delay do not weigh in favour of granting an extension of time.

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

[7] Mr Stone was aware of the termination on the date it took effect. He had the full 21 days to make the application. This weighs against the granting of an extension of time.

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

[8] Mr Stone said he did not take any action to dispute his dismissal. This weighs against the granting of an extension of time.

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

[9] Underground Services says it will be prejudiced if it now has to defend an unfair dismissal claim. Had it had been informed of Mr Stone’s issues, it says it could have responded in a different and less costly manner.

[10] I do not accept this submission. Even if an extension of time were granted, it would be open to Underground Services to resolve this matter in the same manner. Apart from having to defend an unfair dismissal claim, I find that there is no prejudice to Underground Services. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[11] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, I am unable to conclude that Mr Stone’s claim has no prospects of success. This weighs in favour of granting an extension of time.

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

[12] Mr Stone submitted that a number of other employees were terminated on the last working day of the year.

[13] I consider that this criterion is neutral.

Conclusion

[14] I do not find that there are exceptional circumstances warranting an extension of time. Mr Stone’s lack of an acceptable explanation for the delay in lodging his application does not support such a finding. The merits of the claim and the lack of prejudice to Underground Services are not so strong as to outweigh the other criteria. Mr Stone’s application is therefore dismissed.

DEPUTY PRESIDENT

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