Randal Coom v ALH Group T/A Glenmore Tavern

[2015] FWC 2844

[2015] FWC 2844 [Note: An appeal pursuant to s.604 (C2015/3970) was lodged against this decision and the order arising from this decision.]

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.365—General protections

Randal Coom
v
ALH Group T/A Glenmore Tavern
(C2015/1667)

DEPUTY PRESIDENT KOVACIC CANBERRA, 24 APRIL 2015

Application to deal with contraventions involving dismissal - extension of time.

[1] The following decision, now edited, was handed down in the hearing of this matter on 22 April 2015.

[2] Mr Coom made an application that was received by the Fair Work Commission (the Commission) on 11 February 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the AHL Group (the Respondent) in contravention of the general protections provisions of the Act. The application was filed 14 days outside the statutory timeframe.

[3] Section 366(2) of the Act provides that the Commission may allow a further period for the making of an application if the Commission is satisfied that there are exceptional circumstances taking into account the considerations set out in that subsection. I will deal with each of these grounds separately.

(a) Reason for the delay

[4] Mr Coom submitted the reason for the delay was that he was awaiting the outcome of a workers’ compensation claim before lodging his application. However, in the hearing it was not disputed that the workers’ compensation claim was determined on 23 February 2015 which was 12 days after Mr Coom’s general protections application was lodged with the Commission.

[5] Mr Coom also referred to a failure on the part of the Commission to forward him documentation. However, he only requested these documents after his application had been lodged.

[6] Finally, Mr Coom indicated that his health had been affected by his dismissal. However, no evidence was provided to substantiate this claim.

[7] Taken together, these factors weigh against a finding that there were exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[8] Based on the submissions, it does not appear that Mr Coom took any action to dispute his dismissal prior to filing his general protections application.

[9] Again, this weighs against a finding that there were exceptional circumstances.

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

[10] The Respondent pointed to the inconvenience and time involved in defending a general protections application. This is not an unusual submission on the issue of prejudice.

[11] Nevertheless, I consider this a neutral consideration.

(d) Merits of the application

[12] Little material was filed with Mr Coom’s application. AHL contended that the application was without merit. Based on the limited material before the Commission I am unable to form a view as to the merits of the application. I therefore consider the issue of merit to be a neutral consideration.

(e) Fairness as between the person and other person in a like position

[13] No submissions were made on this consideration by either party. This is therefore a neutral consideration.

Conclusion

[14] Having considered all of the factors in s.366(2) of the Act, particularly the reason for the delay in Mr Coom filing his application, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366.

[15] Accordingly, the application will be dismissed. An order [PR563448] to this effect will be issued with this decision.

Appearances:

R Coom on his own behalf.

J Wregg from the Respondent.

Hearing details:

2015.

Canberra:

April 22.

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<Price code A, PR563447>