Peter Weeden v Birla Nifty Pty Ltd T/A Birla Nifty Copper
[2011] FWA 4377
•14 JULY 2011
[2011] FWA 4377 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Weeden
v
Birla Nifty Pty Ltd T/A Birla Nifty Copper
(U2011/294)
COMMISSIONER WILLIAMS | PERTH, 14 JULY 2011 |
Unfair dismissal – extension of time for lodging application.
[1] Mr P Weeden (the Applicant) lodged an application with Fair Work Australia (the Tribunal) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) asserting that he had been unfairly dismissed by Birla Nifty Pty Ltd trading as Birla Nifty Copper (Birla).
[2] The application was lodged on Wednesday 16 February 2011. The parties agree the dismissal took effect on Tuesday 1 February 2011.
[3] The Respondent initially objected to the application on the grounds that it was lodged out of time and that the Applicant’s remuneration exceeded the high income threshold however this latter objection was withdrawn.
[4] The parties have provided submissions to the Tribunal on the question of the timing of the application.
The legislation
[5] Section 394(2) and (3) of the Act provide that:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[6] The application was made one day after the 14 day time limit.
[7] This decision deals with whether or not a further period should be allowed for the Applicant to make the application.
[8] I turn to consider the particular factors specified in s. 394(3) of the Act.
S.394(3)(a)
[9] The Applicant explains that he contacted the Australian Workers’ Union (the AWU) on the day he was terminated 1 February 2011 and he was given an appointment to meet with them on 9 February 2011.
[10] He met the AMU on 9 February 2011 in Perth and instructed them to file an application at the Tribunal regarding his dismissal.
[11] The Applicant concedes that the application was filed by the AMU on his behalf one day late.
[12] The Applicant has provided an explanation he received from the AWU that the AWU organiser that represented members employed in the mining sector was away at the time. There was also a delay by the administrative staff within the AWU locating and referring his file for lodgement in the Tribunal because the organiser was away and out of telephone contact.
[13] In short what is submitted is that it was the AWU’s error that caused this application to be lodged one day late. It is submitted that this amounts to representational error.
[14] The Respondent recognises that what occurred here was a representative error however argues this is only one factor for the Tribunal to take into account when deciding whether or not to grant an extension of time for the filing of this application.
[15] In this case a mistake was made by the representative of the Applicant and I am satisfied that it is this representative error that is the reason for the late lodgement of this application.
[16] I accept what occurred here is an acceptable explanation for the delay.
S.394(3)(b)
[17] The Applicant became aware of the dismissal the day before it took effect having received a letter from the Respondent on 31 January 2011 advising him he would be dismissed the following day.
S.394(3)(c)
[18] The Applicant took immediate action by contacting his union and meeting with them eight days after his dismissal.
S.394(3)(d)
[19] There is no prejudice to Birla in this instance given the extension of time sought by the Applicant is only one day.
S.394(3)(e)
[20] Both parties have provided detailed submission on the merits of the dismissal and there is obviously much contested ground between them.
[21] The authorities make it clear that it is not appropriate to embark upon a fact finding exercise in relation to the merits of a dismissal for the purposes of determining an extension of time application such as this. For the purposes of the extension of time application I am satisfied that the Applicant’s case is not one that has no possibility of success.
[22] The Applicant should not interpret this as meaning that he has a good case, indeed if the Respondent can demonstrate the facts are as it submits then the Applicant is unlikely to succeed in his unfair dismissal case.
S.394(3)(f)
[23] This factor is not relevant here.
Exceptional Circumstances?
[24] Section 394(3) of the Act requires that Fair Work Australia be satisfied that there are “exceptional circumstances” to allow a further period of time to make an application after the 14 day time limit has elapsed.
[25] Exceptional describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. 1
[26] In this case the error of the Applicant’s representative is an acceptable explanation for the delay of one day in lodging this application. There are no other significant factors weighing against the granting of the extension of time in this instance.
[27] Considering all of the factors I am satisfied that that there are exceptional circumstances that warrant extending the time allowed for the making of this application.
[28] An order to this effect will issue in conjunction with this decision.
COMMISSIONER
1 [2009] FCAFC 150 at 51
Printed by authority of the Commonwealth Government Printer
<Price code A, PR511360>
0
1
0