Raymond Knight v Stephen Nolan T/A Devil Engineering

[2014] FWC 4387

[2014] FWC 4387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raymond Knight
V
Stephen Nolan T/A Devil Engineering
(U2013/17362)

COMMISSIONER SIMPSON BRISBANE, 8 JULY 2014

Application for relief from unfair dismissal - Jurisdictional Objection out of time - Upheld Application dismissed

[1] The following Decision, now edited, was issued during proceedings on 1 July 2014.

[2] This is a matter that concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) by Mr Raymond Knight (“the Applicant”) who alleges the termination of his employment with Devil Engineering Pty Ltd (“the Respondent”) was unfair in accordance with the definition in s.385 of the Act. The Applicant worked for the Respondent from July 2007 until his termination.

[3] The Respondent has objected to the application on the basis that it has been filed out of time. At a direction hearing I requested the parties file written material and we arranged for the matter to be heard Tuesday 1 July 2014.

[4] The relevant provision I need to consider for the purposes of an out of time application is s. 394 of the Act. I will not read all of it in full but it sets out the ability for the Commission to provide a further period for the application to be made if it is satisfied of exceptional circumstances, taking into account six different considerations set out in s.394(3) of the Act.

[5] In terms of the date of termination the original application indicated that it might have been 21 November or even had effect from the 25th but it is now accepted by Mr Knight that it was, in fact, 14 November and that he was in error in his application.

[6] In terms of the Applicant’s submissions, Mr Knight has referred to the matter being complicated since his dismissal being the provider for his family, his wife, his children and they are expecting another child soon. The Applicant has referred to the fact that he has a large mortgage and was shocked at the time of his dismissal, and stated he has been depressed, stressed and withdrawn. He has said his wife insisted he pursue the matter so he rang the Commission to get some advice. He said it took about a week before he got that advice as he had to wait for a phone appointment. The Applicant said that he was very distracted around this time as he was anxiously trying to find other work and he was also dealing with one of his children being unwell. His wife also has had some complications as part of her pregnancy.

[7] The Applicant referred to his sleep being effected and depression causing him to be somewhat disoriented in terms of time. He said he finally was able to get full time work. He has confirmed today that that was a day or two before he filed the application which would have been probably the 10 or 11 December 2013 that he gained new full time employment.

[8] The Respondent filed an 8-page written submission. They have relied on a range of authorities. I won’t refer to all of them. They have relied on authorities that deal with circumstances where someone expresses feelings of shock and distress following dismissal, particularly the decision in Jonathan Hart v Damien John Pedder and Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust T/A Manion Plumbing  1where it was found that proof of incapacity due to stress does not, where proof is not supported by some sort of medical evidence carry significant weight, and that it is normal to have such a reaction.

[9] The Respondent relies on other authorities such as Ms Susan Rose v BMD Constructions Pty Ltd  2that found a requirement to provide medical evidence to support a claim of incapacity to take steps to file an application where the ability to file was claimed to be affected by health issues. The Respondent also referred to a Decision in Wemyss and Mission Australia Employment Services3 where it was said as follows;

“there would needs to be evidence of the debilitating nature of the health problems and the alterations of those problems on or around 27 November 2009 which would have enabled the Applicant to make enquiries that led quickly to the lodgement of a claim.”

[10] The Respondent said the Applicant was capable of looking for other employment and contacting the Fair Work Commission during the period. The Applicant has confirmed today in his oral submissions that he did make a range of efforts to seek other employment which he did do from the day after his termination which took some considerable effort before ultimately getting other full-time employment on 10 December. The Respondent said that the Applicant sent text messages on multiple times and made some reference to efforts to apparently arrange a mortgage although I have not quizzed the Applicant specifically about that today.

[11] On the matter of the Applicants child who was unwell, it appears to be the situation that that wasn’t a circumstance that occurred as an eminent serious health issue at the immediate time after the termination. It appears to have been an ongoing health issue. That’s an issue that was considered in Perkins v Cretan Enterprises Pty Ltd.  4

[12] The Respondent has made a submission in response to the Applicant’s claimed inability of himself and his wife to keep track of days and dates. There would appear to be some difficulty with that submission given what the Applicant said about the fact that he had been making efforts to get employment and his wife had also been working.

[13] Having clarified the fact that the termination date was 14 November 2013 it is clear that the last day on which the Applicant could have filed his application was 5 December 2013. On that basis the application was filed 7 days out of time.

[14] It seems to be clear the Applicant was made aware on the termination date that he was dismissed.

[15] In terms of other actions taken to dispute the dismissal the application itself was lodged out of time. The other step that appears to have been taken was an effort to contact the Fair Work Commission about seeking information on the ability to make an application but other than that there does not appear to be other evidence going to steps taken to actively challenge the dismissal.

[16] In terms of prejudice to the employer, including prejudice caused by the delay, I do not see that as a significant issue in the facts of this case.

[17] I regard the merits of the matter as being neutral at this stage given the fact that I have not heard evidence on the issues in dispute.

[18] I do not see s. 394(3)(f) as having particular significance in this case.

[19] The onus falls on the Applicant in these matters to justify an extension. I have considered the competing submissions as put and I have considered all of the elements of s.394 as required by the Act. I am not satisfied on the particular facts of this case that there are exceptional circumstances to justify an extension of time. I have arrived at that view based on the relevant authorities including those referred to by the Respondent in their submissions, including those referred to specifically in my Decision today. On that basis, I must dismiss the application as it is outside the jurisdiction of the Commission.

COMMISSIONER

Appearances:

Mr Raymond Knight the Applicant

Ms May Haycroft Workplace Solutions for the Respondent

Hearing details:

1 July 2014 in Brisbane

 1   Jonathan Hart v Damien John Pedder and Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust T/A Manion Plumbing [2014]FWC1744

 2   Ms Susan Rose v BMD Constructions Pty Ltd [2011]FWA 673

 3   Wemyss and Mission Australia Employment Services [2010]FWA 1798

 4   Perkins v Cretan Enterprises Pty Ltd. [2014] FWC 2574

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