Paul Hurij v BGC Contracting Pty Ltd

[2014] FWC 7055

[2014] FWC 7055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Hurij
v
BGC Contracting Pty Ltd
(U2014/518)

DEPUTY PRESIDENT MCCARTHY PERTH, 17 OCTOBER 2014

Application for relief from unfair dismissal - extension of time.

Background

[1] On 21 February 2014, Mr Paul Hurij (the Applicant) lodged an Unfair Dismissal Application (the Application). The Applicant asserts that he was unfairly dismissed from his employment with BGC Contracting Pty Ltd (the Respondent). The Applicant states that his dismissal took effect on 23 January 2014. The Application was therefore lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).

[2] On 21 March 2014, the Respondent filed a Form F3 - Employer Response to Unfair Dismissal Application (the Employer Response). The Employer Response indicated that they had two jurisdictional objections in relation to the Application, being (a) that the Application was lodged outside the 21 day timeframe provided by the FW Act; and (b) the dismissal was a case of a genuine redundancy.

[3] The matter was allocated to me on 26 March 2014. I subsequently listed the matter for a Directions Conference on 14 April 2014. The Directions Conference was adjourned to enable discussions to occur between the parties.

[4] On 15 April 2014, the Applicant advised my Chambers that the parties had been unable to reach an agreement. I subsequently issued Directions on 23 April 2014 requiring both parties to provide submissions and witness statements.

[5] As there were disputed facts, namely the date the Applicant was notified of his termination I listed the matter for a Jurisdictional Hearing on 14 August 2014. At the commencement of that Hearing the Applicant conceded that he was “verbally” notified that he was being made redundant on 22 January 2014 and that he flew off-site on 23 January 2014. I advised the Applicant that in light of this I would need to determine whether exceptional circumstances existed to allow an extension of time. I adjourned the matter to allow the Applicant to provide further submissions regarding the matters I must take into account in determining whether exceptional circumstances existed.

[6] On 15 August 2014, the Applicant provided submissions. In summary the Applicant submitted that:

● He emailed the Respondent’s human resources department on 24 January 2014 explaining the he had been dismissed. The Applicant received no response from the Respondent and took this to mean that the Respondent was looking into the dismissal.

● As he had received no written termination notice he was unsure as to whether or not he had been terminated. It was not until he received his pay advice on 3 February 2014 which stated that he had accrued redundancy payment that he realised he had been made redundant.

● An extension of time would not be prejudicial to the Respondent as the delay was due to poor correspondence between the Respondent’s senior management at Wodgina, the Respondent’s human resources and himself.

● He was unaware of the 21 day limit to submit a claim for unfair dismissal until he sought legal advice on 17 February 2014.

● Other persons in a similar position would have received a written letter of termination that would leave them in no uncertainty as to their employment status.

[7] On 26 August 2014, the Respondent provided a response to the Applicant’s submissions. The Respondent also sought to rely on their submissions of 14 May 2014 and 17 June 2014.

Extension of time

[8] The Applicant submitted that one of the reasons for his delay was that he was unaware of the 21 day time limit to lodge an unfair dismissal application in the FWC until he sought legal advice on 17 February 2014. In his submissions of 18 August 2014 the Applicant stated that:

“I spoke to Stephen Edwards (LLB) regarding the unfair dismissal from BGC. I was advised by Stephen that I had 21 days to submit a claim for unfair dismissal. He advised he could apply for an extension of time for the claim application, at the cost of over $1,000, which I declined due to financial hardship”.

[9] However, I note that in his Application the Applicant stated that:

“I was informed by MKI Legal that because I was given the opportunity to stay for two weeks and work that the date for the 21 day commencement would be 14 days after the 23/01/2014. I also had the option to fly on 23/01/2014 but was paid for the fortnight after the 23/01/2014”.

[10] I find that a misinterpretation or lack of knowledge of the time allowed to file an unfair dismissal application does not establish an exceptional circumstance.

[11] The Applicant also states that another reason for the delay was that he was unsure as to whether or not his employment had been terminated as he had not received any formal “written termination notice”.

[12] At the Hearing conducted on 14 August 2014, the Applicant conceded that he was “verbally” notified on 22 January 2014 that he was being made redundant. However, in his written submissions of 15 August 2014, the Applicant submits that he was not aware that he had been made redundant until he received his pay advice on 3 February 2014 which stated that he had received a redundancy payment.

[13] The Respondent states that:

“The Applicant was informed at a meeting on 22 January 2014 that he was being made redundant and knew that his employment had been terminated effective 22 January 2014 when he elected to be paid in lieu of notice.”

[14] The Respondent further submits that the Applicant’s assertion that he was unsure whether or not his employment had been terminated is contradicted by his concession at the Hearing on 14 August 2014.

[15] I find that the Applicant was notified of his termination on 22 January 2014. This element of my considerations does not weigh in favour of a finding of exceptional circumstances.

[16] The Applicant states that he emailed the Respondent’s human resources department on 24 January 2014 explaining his dismissal from Wodgina. The Applicant asserts that as no response was received from the Respondent he took this to mean that the Respondent was looking into the “poor nature of the dismissal”. The Applicant also asserts that he called the Respondent’s human resources department on 5 February 2014 regarding the email and that the recipient of the call stated “we have been advised not to comment.”

[17] The Respondent states that in his email of 24 January 2014 the Applicant did not request a review of the decision to terminate his employment or a response to his email. Rather the Respondent states that the Applicant claimed in his email that he had “every intention of taking this further with what I believe to be discrimination, a personal attack and unfair dismissal; because I refused to sign a first and final”.

[18] I find that the action taken by the Applicant does not weigh towards a finding of an exceptional circumstance.

[19] The Respondent submits that they would suffer a prejudice if an extension of time was allowed. The Respondent states that they have incurred unreasonable additional costs associated with the Applicant’s non-compliance with the FWC’s process for determining whether the Application should be allowed. I have applied a neutral weighting to this element of my considerations.

[20] The Respondent asserts that the Application lacks merit. The Respondent submits that the Applicant’s dismissal was a case of genuine redundancy. The Respondent’s have an arguable case in this element of their submissions. However, I give this element a neutral weight.

[21] I consider it would be unfair between this Applicant and other persons in a similar position if the Application were allowed.

[22] I find that exceptional circumstances do not exist. I therefore refuse to allow the Application. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

P Hurij on his own behalf.

D Fletcher from K&L Gates on behalf of the Respondent.

Hearing details:

2014.

Perth:

August 14.

Final written submissions:

Applicant, 8 September 2014.

Respondent, 26 August 2014.

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