Richard Costello v Sargeant Transport Pty Ltd

[2018] FWC 7159

[2018] FWC 7159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Richard Costello

v

Sargeant Transport Pty Ltd

(C2018/5487)

Commissioner McKinnon MELBOURNE, 26 NOVEMBER 2018

Application to deal with contraventions involving dismissal – extension of time – application granted.

1. This is an edited version of the decision delivered ex tempore and recorded in transcript on 15 November 2018.

“I have decided to grant to you additional time to make your application Mr Costello and I'm going to briefly explain my reasons for that decision now.

I have taken into account the reason for delay. I note as I indicated before, that the original application for unfair dismissal was referring both to an unfair and unlawful dismissal.  That application was made well within the 21 day period required.  It is clear to me that there were some jurisdictional issues arose that were matters not within your knowledge Mr Costello and fairly, there was some confusion around whether or not you'd met the minimum employment period because of your different relationships as an agency worker and a direct employee.

I also note that those issues were brought to your attention around the long weekend when it was likely difficult to obtain advice, but you nevertheless sought to do so promptly and you did so in response to the respondent's decision to refuse to participate in conciliation and raise its jurisdictional objection as it was entitled to do.

I am satisfied that you have taken prompt and proactive action to dispute the dismissal.  You filed your application in time as I said.  You disclosed unlawful dismissal grounds.  You sought legal advice when you were aware that that created potential difficulties for you and you immediately sought to change the nature of your claim. Whether or not you in fact needed to withdraw and re-lodge was a question. Nevertheless, you acted on the advice you were given.

As to prejudice to the company, I'm aware of the issues raised by the company in that regard including that some of the people affected by this claim are no longer in employment and the size of the business which is not small, but medium.  Perhaps you don't have much independent HR advice other than the external providers you rely on.  That prejudice has to be outweighed by the prejudice to the applicant if he has no right to be heard in relation to this claim and in that respect, his application was only six days late.

Partially the delay was as a result of decisions made within your rights to take a jurisdictional objection approach, but nevertheless, that had an effect on the process.  I'm also conscious that the company has known from the outset that allegations in this matter involved allegations of unlawful dismissal.

As to the merits, it's difficult to say and certainly I make no findings as to the merits of the claim at this early stage because we haven't had a hearing.  But I do consider there is an arguable case on the papers because there was no reason given for termination and the applicant had been in employment both through the agency and then directly for a considerable period of time before it was declared that he was not suitable for the position. I think the merits at this stage, if a prima facie case has to be established, I think Mr Costello has done so. 

It's not clear to me that fairness as between other persons is a relevant criterion in this case.  I'm not aware of anybody else who is similarly affected.

So, a combination of the factors I've referred to convinces me that there are exceptional circumstances in this case, warranting the grant of additional time and I do so.”

1. An Order giving effect to this Decision is issued separately in PR702624.

COMMISSIONER

Appearances:

R Costello on his own behalf.

M Corrigan for Sargeant Transport Pty Ltd

Hearing details:

2018.
Melbourne:
November 15.

Printed by authority of the Commonwealth Government Printer

<PR702547>