Peter Brady v Kailis Bros Pty Ltd

[2020] FWC 5771

[2020] FWC 5771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Brady
v
Kailis Bros Pty Ltd
(U2020/9124)

COMMISSIONER WILLIAMS PERTH, 2 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Mr Peter Brady (Mr Brady or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent is Kailis Bros Pty Ltd (the Respondent).

[2] It appears this application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed by the Fair Work Commission (the Commission) for the application to be made.

[3] The Respondent also objects to the application on the ground that the dismissal was a case of genuine redundancy.

[4] Section 394 (2) of the Act requires that an application, such as this, must be made within 21 days after the dismissal took effect. The Commission however, has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[5] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act and invited him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[6] The Applicant provided a written response to the Commission’s direction.

[7] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Background facts

[8] Mr Brady’s Form F2 – Unfair dismissal application does not specify a date on which he was dismissed. Rather, Mr Brady on the form states that he was casual at the time he was called and told his services were no longer needed, and then months later told he was sacked.

[9] As to the date his dismissal took effect his form says

“Ryan Fuller can tell you as lead to think I would be put on again.”

[10] Mr Brady has not otherwise provided any specific date on which he was notified of his dismissal, nor when that dismissal took effect.

[11] On his form Mr Brady has ticked the box indicating that he has not made the application within 21 calendar days of his dismissal taking effect.

[12] The Respondent’s Form F3 - Employer response to unfair dismissal application states the Applicant’s last casual shift was mid-February 2020 and that Mr Brady was advised that he would not be engaged for any further shifts on 28 February 2020, which was the date the dismissal took effect.

[13] The Respondent states that in April 2020 the Applicant contacted its HR department and requested a statement of service/employment confirmation letter so that he could gain employment elsewhere. This was mailed to him the same day. That letter, attached to the employer’s response, states that the employment ended on 20 February 2020 and the employment status was casual.

[14] I find that the date Mr Brady’s dismissal took effect was either on 20 or 28 February 2020.

[15] Mr Brady’s application was filed with the Commission on 3 July 2020.

[16] Mr Brady’s application had been filed more than 100 days after the 21 day time limit had passed.

[17] Mr Brady provided a written submission in support of his request, that the Commission exercise its discretion to allow him further time to make his application beyond the 21 day time limit.

The reason for the delay

[18] Mr Brady states that whilst Mr Fuller would have been aware of the 21 day requirement about unfair dismissal, he was not aware of this. No other explanation for the delay was provided.

[19] The Commission in many previous cases has ruled that not being aware of the law which requires employees to make their application within 21 days of the dismissal, is not an acceptable reason for making their application after the 21 days has passed.

[20] Mr Brady has not provided an acceptable reason for the delay in making this application.

Whether the Applicant first became aware of the dismissal after it had taken effect

[21] I accept, as the Respondent states, that Mr Brady, at the latest, was aware on 2 April 2020 when he requested the statement of service/employment confirmation letter that he had been dismissed.

[22] If that was the earliest date on which Mr Brady was aware he had been dismissed this means his application was still filed more than 90 days after he first became aware of his dismissal.

Any action taken by the person to dispute the dismissal

[23] There is no evidence that the Applicant took any action to dispute his dismissal other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[24] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[25] Mr Brady has not provided any explanation for why he believed the dismissal was unfair, although he has explained about a number of the difficulties he experienced during his employment.

[26] The Respondent, in its reply, explains that Mr Brady was a casual lobster delivery driver.

[27] Due to the COVID-19 pandemic the Respondent’s lobster export market was shut down on 31 January 2020. The Applicant was temporarily redeployed to perform other non-driving duties but the Respondent had no other casual work available for Mr Brady beyond the end of February 2020.

[28] It is only at a hearing of a matter such as this, would it become clear what the merits of the application are.

[29] Consequently, I view the merits of the application as a neutral factor in this decision.

Fairness as between the person and other persons in a similar position

[30] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[31] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here, I am not satisfied that this case involves exceptional circumstances.

[32] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application was made more than 21 days after the dismissal took effect and so is not properly before the Commission, and must be dismissed.

[33] An Order [PR724054] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 19 August 2020.

Printed by authority of the Commonwealth Government Printer

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