Peter Hermann v Rexel Electrical Supplies T/A Rexel

[2014] FWC 4023

[2014] FWC 4023

The attached document replaces the document previously issued with the above code on 18 June 2014.

Paragraph numbers have been corrected commencing from page 2, second paragraph to run sequentially.

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

19 June 2014

[2014] FWC 4023

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Hermann
v
Rexel Electrical Supplies T/A Rexel
(U2014/6111)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 JUNE 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 13 June 2014 I advised the respondent to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision. They also address concerns raised by Mr Hermann in an e-mail forwarded to the Fair Work Commission on 14 June 2014.

[2] On 1 April 2014 Mr Hermann lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Rexel Holdings Australia T/A Rexel Electrical (Rexel).

[3] In that application, Mr Hermann advised that his dismissal took effect on 23 March 2013. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“I notified Worksafe SA Port Pirie Branch lunchtime, 23/3/13 about the issues I had with Rexel’s attitude to work safety. I have been handballed between Worksafe Pirie & Adelaide with no help whatsoever for the last year. I was employed by this company with their knowledge that I had a disability due to a car accident to find out that my former employer is saying that I am a lazy person. I gave them 3 week notification in writing that I was not happy with Rexels attitude to safety. In 2009 was dismissed by same company, forced to pay medical bill from work injury and then sacked.” 1

[4] The application was referred to me for consideration. On 23 May 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 13 June 2014. Mr Hermann was required to provide a witness statement and a copy of any document relied upon, by 30 May 2014.

[5] The Employer’s Response (Form F3) to the application identified the employer as Rexel Electrical Supplies T/A Rexel. This response asserted that Mr Hermann resigned on 21 March 2013 and left without notice. The Form F3 confirmed that Rexel objected to an extension of time and objected to the application proceeding on the basis that Mr Hermann had not been dismissed.

[6] Mr Hermann provided no information to the Fair Work Commission (FWC) or to Rexel before his e-mail of 14 June 2014.

[7] The extension of time issue was considered through a telephone conference on 13 June 2014. A sound file record of this conference was kept. Mr Hermann did not attend this conference. Rexel was represented by Mr Atkins and Ms Harrad.

[8] At the conference I advised that I would amend the application pursuant to s.586 of the FW Act so as to specify the respondent as Rexel Electrical Supplies T/A Rexel.

[9] The directions provided to Mr Hermann on 23 May 2014 stated:

“[8] Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned. Mr Hermann should particularly note that, if material is not provided in accordance with these directions I am likely to conclude that he no longer seeks to pursue the application and close the file accordingly.”

[10] As a consequence, and in the absence of any other advice from Mr Hermann, I concluded that Mr Hermann no longer sought to pursue the application. For the avoidance of doubt I nevertheless considered the extension of time issue on the material before me. That information included material provided by Rexel in the form of a statement made out by Ms Fitzgerald who was an Assistant Branch Manager. Ms Fitzgerald confirmed that she was present at the time that Mr Hermann resigned his employment. This material also included e-mails which referred to rumours of Mr Hermann’s resignation and a copy of a resignation letter signed by Mr Hermann.

[11] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[12] Section 394 states:

“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.”

[13] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged more than 12 months after the termination of Mr Hermann’s employment and is consequently substantially outside of the 21 day time limit. It can only be pursued if an extension of time is granted pursuant to s.394(3). I considered whether Mr Hermann’s circumstances can be regarded as exceptional for the purposes of this subsection.

[14] The information Mr Hermann has provided in his application did not adequately explain why the application could not have been lodged within time. That information did not establish any satisfactory reason for the very substantial delay.

[15] On the information before me, I was satisfied that Mr Hermann was aware of the termination of employment decision on 21 March 2013 which I have taken as the date that termination of employment took effect notwithstanding that the letter of resignation signed by Mr Hermann and forwarded to Rexel on that day purported to give three weeks notice. In this respect I was satisfied that Mr Hermann did not attend work again after 21 March 2013.

[16] Again, from the information provided in Mr Hermann’s application it was not clear that he challenged the termination of his employment.

[17] Given the substantial delay in the lodgement of the application I concluded that the granting of an extension of time would prejudice the respondent in this matter.

[18] In terms of the merits of the application, s.385 confirms that a person can only be unfairly dismissed if he or she has been dismissed. Section 386 establishes the meaning of dismissed. For this purpose the termination decision must be at the initiative of the employer. The information before me clearly indicated that Mr Hermann resigned his employment and that this termination of employment was not at the initiative of the employer. Accordingly, I did not consider that Mr Hermann was able to make an application of this nature. Any extension of time would, in these circumstances be absolutely futile.

[19] Considerations of fairness relative to persons in similar circumstances to Mr Hermann did not support an extension of time.

The 14 June 2014 e-mail

[20] This e-mail stated:

“My question is about: Dismissals

I want to find: an unfair dismissal application that is currently at the Commission

Please enter your query below, then click the Send button to dispatch: U2014/6111 THIS MATTER WAS SCHEDULED FOR 3.00PM SA TIME 13 JUNE 2014 YET I WAS NOT ABLE TO SORT THIS OUT DUE TO YOUR STUPID SYSTEM HANGING UP ON ME TWICE AFTER SPENDING 26MINS IN A RAINED OUT PUBLIC PHONE AND THEN GOING TO MY LOCAL FEDERAL M.P. OFFICE TO AGAIN BE HUNG UP ON AFTER ANOTHER 26 MINS ON HOLD. THIS MATTER HAS BEEN GOING ON SINCE 23 MARCH 2013, CAUSING ME UNTOLD STRESS AND I AM YET TO BE HELPED BY YOUR DEPARTMENT OR SAFEWORK SA. WHAT THE HELL DO I HAVE TO DO TO GET SOME ASSISTANT WITH THIS MATTER? DO I NEED TO TAKE THIS INCOMPETENCE FROM THESE GOVERNMENT DEPARTMENTS TO MY LOCAL FEDERAL MP OR STATE SENATOR NIK XENEPHON OR THE PRESS TO ACTUALLY GET SOME HELP? HOW ABOUT DOING YOUR JOBS LIKE YOU ARE GETTING PAID FOR YOUR WORK. GET IN CONTACT WITH ME ASAP” (sic)

[21] I have reviewed the decision I made on 13 June 2014 in the light of Mr Hermann’ e-mail of the following day. Leaving aside the rudeness associated with this advice, Mr Hermann's e-mail confirms that he was aware that the matter was listed for consideration at 3.00 pm on 13 June 2014. It does not explain why it is that Mr Hermann did not comply with the directions issued on 23 May 2014. Those directions were attached to the Notice of Listing. Mr Hermann did not provide any material in support of his belated application as he was required to do. The telephone conference on 13 June 2014 was conducted through Telstra. Enquiries made by my Associate, at my request, have confirmed that Mr Hermann did not dial in to this conference. I am not satisfied that his e-mail provides any basis upon which to revoke or change the decision made on 13 June 2014.

Conclusion

[22] For the reasons I have set out above, Mr Hermann’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). Further, I have concluded that there is no capacity for Mr Hermann to pursue the application as he was not dismissed. The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR552137) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

R Atkins and V Herron representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

June 13.

 1   Form F2, para 1.4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552136>