Peter McQueen v Hindmarsh Constructions
[2019] FWC 1574
•14 MARCH 2019
| [2019] FWC 1574 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter McQueen
v
Hindmarsh Constructions
(U2018/9110)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 14 MARCH 2019 |
Application for relief from unfair dismissal – two jurisdictional objections raised by the Respondent: the Applicant is not protected from unfair dismissal and the application was lodged outside the statutory timeframe – determined inter alia that Applicant was not protected from unfair dismissal – application dismissed.
[1] Mr Peter McQueen (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 6 September 2018 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Hindmarsh Constructions (the Respondent) on 31 July 2018 was unfair.
[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised two jurisdictional objections to Mr McQueen’s application. Specifically, the Respondent objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act (the application was lodged 16 days outside the 21 day statutory timeframe) and that Mr McQueen earned more than the high income threshold ($145,400 at the time of Mr McQueen’s dismissal).
[3] The Respondent’s jurisdictional objections were heard on 21 December 2018. At the hearing, Mr McQueen appeared on his own behalf while Ms Shelley Williams appeared with permission for the Respondent.
[4] For the reasons outlined below, I have found that Mr McQueen is not protected from unfair dismissal as per s.382 of the Act and his application will be dismissed. An order to that effect will be issued in conjunction with this decision. I note that even if Mr McQueen was protected from unfair dismissal, his application would have been dismissed because it was lodged outside the 21 day statutory timeframe and there are no exceptional circumstances warranting Mr McQueen being granted a further period for the making of his unfair dismissal application.
Background
[5] Mr McQueen commenced employment with the Respondent as a Project Manager on 20 November 2017.
[6] Attached to the letter of ‘Offer of Employment – Project Manager’ 1 sent to Mr McQueen by the Respondent on 6 November 2017 was a schedule outlining the terms and conditions of Mr McQueen’s employment. The schedule, titled ‘Terms and Conditions of Employment’, which deals with a range of issues including hours or work, remuneration and leave entitlements, includes the following provisions:
“11. Off-set
11.1 Your annual remuneration package is inclusive of and paid in full satisfaction of all payments and benefits that the Company is legally obliged to pay you (including wages, leave loading, overtime payments, penalty rates, allowances or other payments for hours worked in excess of ordinary hours) under any industrial instrument or pursuant to the Act [the Fair Work Act 2009]. To the extent that your annual remuneration package exceeds your entitlements under any industrial instrument or pursuant to the Act, the excess will be used to offset any of those monetary entitlements.
…
24. Change to Terms of Employment
Your Employment by the Company will continue to be subject to the terms of this Agreement, unless varied or replaced by an agreement in writing, despite any change to your remuneration, position, duties, supervisor or location.
25. Entire Agreement
As to its subject matter, this Agreement including any Schedules constitutes the entire agreement between the parties and supersedes all prior representations and agreements between us in connection with that subject matter.
…
SCHEDULE 1
… | … |
Remuneration Package: | $164,250.00 gross per annum, inclusive of employer statutory superannuation contribution. |
…”
[7] Mr McQueen was dismissed on 31 July 2018 and was not required to work out the notice period. The termination letter included the following:
“Dear Peter
Termination of Employment: Performance
After a great deal of consideration, unfortunately a difficult decision has been made not to continue your employment with the Company. The following factors were considered:
Team management
Programming
Communication
Sub-contractor management
Based on your length of service, your notice period is one month. A decision has been made by the Company that you are not required to work out your notice period and that your last working day will be 31 July 2018 in place of 31 August 2018.” 2
[8] The Respondent is covered by an enterprise agreement, the Hindmarsh Construction Australia Pty Ltd – ACT Union Collective Agreement 2013 3 (the Agreement). The Agreement includes the following provisions:
“1. INCIDENCE AND PERSONS BOUND
1.1 The Parties to this Agreement are:
(a) Hindmarsh Constructions Australia Pty Ltd – ACT (ABN 15 126 578 176) (‘the Employer’); and
(b) The Employer’s Employees engaged on work in or in connection with building, alteration, maintenance or demolition (‘the Employees’); and …
1.3 This Agreement embraces all terms and conditions of employment for the Employer’s employees within the ACT and surrounding region. The Agreement shall be binding upon the Company, the Union, and all Employees. The terms of the Award, as amended from time to time, are expressly incorporated into this agreement.
18 EMPLOYMENT PROCEDURES
…
An offer of employment detailing an applicant’s classification will be made in writing. A copy of this Agreement will be attached to the offer.
27 WAGES
27.1 The Parties agree that the Employees covered by this Agreement shall be classified according to the Classification Levels included in Schedule 1 of this Agreement. Employees will be engaged at a Construction Worker (CW) level …
SCHEDULE 1 – CLASSIFICATION LEVELS
Each Construction Worker Level builds on the preceding level skills base as a prerequisite for ongoing development. Construction Workers are required to carry out all tasks for each level for which they have the skills / competency both at their classification level and the preceding classification level.
Employees covered by this Agreement shall be classified according to the skill based classification structure set out below:
Construction Worker Level 1 | (New Entrant). Upon commencement in the industry Forklift Drivers up to 5000kg Jackhammer person |
Construction Worker Level 2 | Concrete Finisher Scaffolder Steel fixer Trades Labourer |
Construction Worker Level 3 | Bricklayers Carpenter and / or Joiner Fixer Painter Rigger - Dogman |
Construction Worker Level 4 | Mobile Cranes 5 to 10 tonnes Operators – mobile hydraulic platform |
Construction Worker Level 5 | Special Class Trades Person |
Construction Worker Level 6 | Lofty Cranes |
… ”
The Statutory framework
[9] The relevant provisions of the Act for the purposes of this matter are ss.382 and 394 which respectively deal with when a person is protected from unfair dismissal and an application for unfair dismissal remedy. Sections 382 and 394 provide as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
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 first person 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.”
Was the Applicant protected from unfair dismissal?
[10] The Respondent submitted that Mr McQueen was not covered by Building and Construction General On-site Award 2010 (the Award) by virtue of clause 43.6 of the Award which excludes managers from the definition of foreperson/supervisor. As to the Agreement, the Respondent contended in its written submissions that Mr McQueen was not covered by the Agreement by virtue of clause 27 of the Agreement which provides that “[t]he Parties agree that the Employees covered by this Agreement shall be classified according to the Classification Levels included in Schedule 1 of this Agreement”, adding that the classifications set out in the Agreement did not include any manager positions. The Respondent further submitted, relying on the decision in Francesco Zappia v Universal Music Australia Pty Limited T/a Universal Music (Zappia) 4, that Mr McQueen’s salary at the time of his dismissal was $150,000 per annum. The Respondent provided a pay slip dated 14 August 2018 which included the following “ANNUAL SALARY $150000.00 EFF DATE 22/11/17”.5
[11] At the hearing, the Respondent essentially reiterated its written submissions, submitting inter alia that it was clear that Mr McQueen’s annual salary was $150,000 per annum and that it was the annual rate of earnings at the time of dismissal as opposed to an assessment of average earnings which was used to determine whether or not the high income threshold was exceeded. In response to questions from the Commission regarding clause 1.1(b) of the Agreement (see paragraph [8] above), the Respondent submitted that the provision needed to be read in conjunction with the classification structure and clause 27 of the Agreement, adding that no management personnel were covered by the Agreement. The Respondent further submitted that Mr McQueen’s employment contract made no reference to any other instruments covering his employment. As such, the Respondent contended that it was fair to conclude that Mr McQueen’s position was a senior management position not covered by either the Award or the Agreement.
[12] In his written submissions Mr McQueen submitted that as he had not had the opportunity to reach the high income threshold because of the brief period of his employment he was still within his rights to lodge his unfair dismissal application. At the hearing, Mr McQueen did not dispute that his annual salary was $150,000 per annum or that his employment contract made no mention of either the Award or the Agreement. However, in response to questions from the Commission Mr McQueen stated that he was covered by the Agreement contending that the Agreement covered all employees. Pressed by the Commission as to the basis on which he made that contention, Mr McQueen responded that he would need to have a look at the Agreement.
[13] The basis on which a person’s annual rate of earnings for the purposes of s.382 of the Act is ascertained was considered by the Full Bench in Zappia which stated:
“[9] … It is clear that the time at which the annual rate of earnings must be ascertained is at the time of the termination of the person’s employment. What needs to be ascertained is the annual earnings at that time, not the annual rate of earnings to that time (the amount earned in the 12 months to that time.” 6 (Emphasis as per original)
[14] Mr McQueen’s annual rate of earnings at the time of his dismissal was $150,000 per annum which is above the high income threshold of $145,400 per annum.
[15] As to whether Mr McQueen was covered by the Award, clause 4 of the Award sets the Award’s coverage and provides as follows at clause 4.1:
“4.1 This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule B—Classification Definitions to the exclusion of any other modern award.”
[16] An examination of the classification definitions at Schedule B of the Award does not indicate that the role of Project Manager is reflected in any of the classification definitions, particularly as the highest classification level in the Award is an Engineering construction worker level 9 (Advanced engineering construction tradesperson level II and Engineering construction technician level V) (ECW 9). This does not support a finding that Mr McQueen is covered by the Award.
[17] The final issue which needs to be considered in the context of s.382 is whether Mr McQueen was covered by the Agreement. The principles relevant to constructing an enterprise agreement are summarised in AMWU v Berri Pty Ltd (Berri). 7 Those principles are set out below.
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 8
[18] Clause 1.1(b) of the Agreement read in isolation points to Mr McQueen being covered by the Agreement. However, I note that Mr McQueen’s role of Project Manager is not captured by the classification structure set out at Schedule 1 of the Agreement. More particularly, I note that:
● clause 27.1 of the Agreement provides that “[t]he Parties agree that the Employees covered by this Agreement shall be classified according to the Classification Levels included in Schedule 1 of this Agreement”; and
● Schedule 1 of the Agreement provides that “[e]mployees covered by this Agreement shall be classified according to the skill based classification structure set out below.”
[19] Drawing on principle 1 in Berri, the ordinary meaning of the above words in the Agreement, particularly when the text of the Agreement is viewed as a whole, support a finding that Mr McQueen is not covered by the Agreement. I note also that clause 18 of the Agreement provides that “[a]n offer of employment detailing an applicant’s classification will be made in writing. A copy of this Agreement will be attached to the offer…” and that Mr McQueen did not dispute that his offer of employment and attached terms and conditions of employment made no mention of either the Award or the Agreement.
[20] Against that background, I find that Mr McQueen was not covered by the Agreement. In my view that finding is reinforced by a number of key differences between Mr McQueen’s terms and conditions of employment and the terms of the Agreement. For instance, Mr McQueen’s terms and conditions of employment provide that:
● he is subject to a 6 month probationary period whereas the Agreement provides for a 3 month probationary period (clause 18.1); and
● his hours of work are 38 per week whereas the Agreement provides for a 36 hour week for full time employees (clause 19(a)).
Finding
[21] For all the above reasons, I find that Mr McQueen is not covered by a modern award or an enterprise agreement and that his annual rate of earnings is above the high income threshold. Accordingly, Mr McQueen is not protected from unfair dismissal as per s.382 of the Act. His application is therefore not competent and must be dismissed.
[22] While strictly speaking it is not necessary for me to do so in circumstances where I have determined that Mr McQueen was not protected from unfair dismissal, for reasons of completeness I will nevertheless consider the Respondent’s second jurisdictional objection, i.e. that Mr McQueen’s application was lodged outside the 21 day statutory timeframe.
Whether to allow a further period for the application to be made under s.394(2)
[23] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.
(a) The reason for the delay
[24] Mr McQueen submitted that he considered that he would lodge his application during a time when he was seeking alternate employment which he assumed would be easy, adding that he eventually had to travel interstate to find employment. Mr McQueen also submitted that he sought advice on his dismissal which took some time and that his dismissal took a ‘mental toll’ on him and was still an issue for him. At the hearing Mr McQueen submitted among other things that:
● he was aware of the 21 day timeframe for lodging an unfair dismissal application; and
● he did not lodge his application within the 21 day timeframe as he needed to make sure his application was ‘strong enough’, adding in response to a question from the Commission that he could not answer how that was exceptional.
[25] The Respondent in its written submissions largely reiterated the reasons for the delay as set out in Mr McQueen’s submissions, positing that those reasons were not sufficient to justify an exercise of the discretion to extend the time for making an application. The Respondent cited several authorities in support of its submissions, including Ms Susan Rose v BMD Constructions Pty Ltd (Rose) 9 and Ramon Gaggino v Central Cleaning Supplies (Aust) Pty Ltd10.
[26] At the hearing, the Respondent noted that Mr McQueen had filed no evidence and submitted inter alia that:
● there was nothing exceptional in Mr McQueen seeking advice regarding his dismissal;
● there was no reason why Mr McQueen was unable to lodge his application with the 21 day statutory timeframe;
● Mr McQueen considering his application was in no way exceptional;
● Mr McQueen’s reasons for the delay in lodging his unfair dismissal application were regular or routine;
● Mr McQueen had provided no evidence regarding the mental toll which his dismissal had on him; and
● there was nothing unusual in a person who had been dismissed having difficulty in finding another job.
[27] As previously mentioned, Mr McQueen was aware of the 21 day statutory timeframe yet chose not to lodge his application within that timeframe so that he could make sure his case was strong enough. Mr McQueen clearly could have lodged his unfair dismissal application within the 21 day statutory timeframe and continued to seek advice but did not do so. As to Mr McQueen’s contention that his dismissal took a mental toll on him, Mr McQueen did not provide any evidence to indicate that his reaction to his dismissal somehow precluded him from lodging his application within the 21 day timeframe. As noted in Rose “[i]t is common for employees to suffer shock and trauma as a result of dismissal from employment.” 11
[28] The above analysis does not point to the existence of exceptional circumstances.
[29] In his application that Mr McQueen stated that the Commission’s online application portal was closed in August 2018. As Mr McQueen did not press this issue in either his written or oral submissions I have not had regard to the issue. Nevertheless I did seek advice from the Commission’s corporate area which advised that the Commission’s online lodgement system was unavailable for the period 17 August to 1 September 2018. However, I note firstly that Mr McQueen’s application was not received by the Commission until 6 September 2018, i.e. several days after the online lodgement system was up and running again, and secondly that during this period Mr McQueen could have either posted his application to the Commission or alternatively lodged his application over the telephone.
(b) Whether the person became aware of the dismissal after it had taken effect
[30] Mr McQueen stated in his application that his dismissal took effect immediately on notification. 12 Mr McQueen confirmed this at the hearing.
[31] The Respondent submitted that Mr McQueen acknowledged in his submissions that he was terminated with effect from 31 July 2018 and that therefore he was aware of the date on which his dismissal took effect.
[32] This factor does not point to the existence of exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
[33] Mr McQueen sought advice regarding his dismissal but other than lodging his unfair dismissal application did not point to any other steps he took to dispute his dismissal. At the hearing Mr McQueen confirmed that he had not taken any steps to dispute his dismissal with the Respondent.
[34] The Respondent submitted that Mr McQueen took no steps to dispute his dismissal within the 21 day statutory timeframe, adding that there was no evidence that Mr McQueen sought advice around the time of his dismissal about the merits of his application or his rights.
[35] This factor does not point to the existence of exceptional circumstances.
(d) Prejudice to the employer (including prejudice caused by the delay)
[36] Mr McQueen submitted that the Respondent would not be prejudiced were an extension of time granted.
[37] The Respondent submitted that it would suffer prejudice as the positon previously held by Mr McQueen had been filled by another candidate. The Respondent further submitted that it would also be prejudiced as a result of incurring costs to defend Mr McQueen’s application. In the alternative, the Respondent submitted that if the Commission was not satisfied that there would be any prejudice to it the mere absence of prejudice was not a sufficient reason to allow an extension of time for the making of an application.
[38] While I note the Respondent’s submissions, its concerns do not constitute prejudice in the sense that it would be disadvantaged in defending the application as a result of the delay in lodging the application.
[39] Against that background, I consider the issue of prejudice to be a neutral consideration.
(e) The merits of the application
[40] Mr McQueen disputed aspects of the Respondent’s submissions regarding this factor, contending inter alia that he had no recollection of the letters referred to in the Respondent’s submissions regarding his performance. At the hearing, Mr McQueen submitted that his performance review was done very hastily, adding that he did not consider that he had been given the opportunity to improve his performance. Mr McQueen also contended that a week before his dismissal he had received an email from one of the Respondent’s senior managers acknowledging that the project which he was managing had turned the corner and that he was happy with progress on the job.
[41] The Respondent on the other hand submitted that if a detailed consideration of the evidence was to occur the Commission would more than likely find that the dismissal was not harsh, unjust or unreasonable. In particular, the Respondent highlighted that Mr McQueen was dismissed due to poor performance and that Mr McQueen had been provided numerous letters through the period of his employment setting out the Respondent’s expectations regarding his performance and the improvements required. At the hearing the Respondent submitted that it had followed a proper performance review process and had provided Mr McQueen with the opportunity to improve his performance but that his response was quite negative.
[42] From the above it is clear that a number of key aspects of the matter are disputed. However, there is little material before the Commission which would enable the Commission to form a preliminary view regarding the merits of Mr McQueen’s application. In those circumstances, I consider this factor to be a neutral consideration.
(f) Fairness as between the person and other persons in a similar position
[43] Mr McQueen did not directly address this factor in his submissions.
[44] The Respondent submitted that to grant an extension of time for Mr McQueen to lodge his unfair dismissal application would lead to inconsistency, may be unfair to other applicants and would result in a significant easing of the prevailing legislative provisions and case law authorities.
[45] In the absence of more compelling submissions regarding this factor, I consider it to be a neutral consideration.
Finding
[46] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group (Nulty ) 13 in the following way:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
[47] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied there are exceptional circumstances warranting Mr McQueen being granted a further period for the making of his unfair dismissal application.
Conclusion
[48] As Mr McQueen is not protected from unfair dismissal as per s.382 of the Act his application will be dismissed. An order to that effect will be issued in conjunction with this decision. I note that even if Mr McQueen was protected from unfair dismissal, given that his application was lodged outside the 21 day statutory timeframe and there are no exceptional circumstances warranting Mr McQueen being granted a further period for the making of his unfair dismissal application that his application would have been dismissed because it was lodged outside the statutory timeframe.
Appearances:
P. McQueen on his own behalf.
S. Williams for the Respondent.
Hearing details:
Canberra.
2018
December 21.
Printed by authority of the Commonwealth Government Printer
<PR705714>
1 Respondent’s Outline of Submissions at Annexure B
2 Ibid at Annexure A
3 AE401680
4 [2012] FWAFB 6108
5 Respondent’s Outline of Submissions at Annexure B
6 [2012] FWAFB 6108 at [9]
7 [2017] FWCFB 3005
8 Ibid at [114]
9 [2011] FWA 673
10 [2014] FWC 5818
11 [2011] FWA 673 at [10]
12 Form F2 – Unfair dismissal application at Question 1.3
13 [2011] FWAFB 975
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