Roberto Furina v Airflite Engineering Pty Ltd

[2013] FWC 9379

[2013] FWC 9379

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Roberto Furina
v
Airflite Engineering Pty Ltd
(U2013/15654)

DEPUTY PRESIDENT MCCARTHY PERTH, 9 DECEMBER 2013

Application for relief re harsh, unjust or unreasonable termination of employment – application lodged nearly five years out of time.

[1] On 6 November 2013 Mr Roberto Furina (the Applicant) lodged an application for unfair dismissal remedy (the application) by a Form - F2 Application for Unfair Dismissal Remedy as provided in the Rules of the Fair Work Commission (FWC).

[2] In the application the Applicant states he was employed on 31 March 2008 by Airflite Engineering Pty Ltd (the Respondent) and was notified of his dismissal on 4 December 2008, and that the dismissal took effect on that date.

[3] An application for unfair dismissal under the Fair Work Act 2009 (the FW Act) can only be made if the dismissal took effect once that Act came into operation. An application for unfair dismissal prior to the FW Act coming into operation could be made pursuant to s.643 of the Workplace Relations Act 1996 (the WR Act).

[4] Under s.643(14) of the WR Act an application must be lodged within 21 days after the day on which the termination took effect, or within such period as the Australian Industrial Relations Commission (the AIRC) allows on an application made during or after those 21 days.

[5] There are therefore two issues that I will deal with in this decision. Firstly, should I allow the application at all, as clearly, the Applicant has used the wrong Form. Secondly, if I allow the use of the Form for the purposes of lodging an application pursuant to the WR Act, as the application is clearly out of time should I allow the application by allowing it to be lodged beyond the 21 days prescribed by the WR Act.

[6] It is clear the Applicant now wants to dispute his dismissal of 2008 but has used an incorrect Form. The Australian Industrial Relations Commission Rules 2007 (the AIRC Rules) allow for a waiver of a requirement of the rules. In the circumstances it is appropriate to waive the requirement to use the Form provided by the AIRC Rules and accept the use of the Form - F2 for the purpose of the Applicant lodging his application pursuant to s.643(1) of the WR Act.

[7] On 15 November 2013, I wrote to the Applicant and indicated to him that his application has been lodged out of time. I requested that the Applicant provide me with information as to why I should allow an extension of time for his application. Whilst I referred to the FW Act in that correspondence the essence of my request for him to provide information remains the same. The Applicant lodged a comprehensive number of documents which appeared to cover most his working life including a resume, certificates of various types and a number of medical reports, some dating back to well before the period the Applicant had been employed by the Respondent. The Applicant also copied a comprehensive letter he wrote to the Respondent on 14 November 2013 dealing with his termination of employment and other issues during his employment by the Respondent.

[8] The Applicant also wrote to me on 18 November 2013 purportedly responding to my request for information in order that I could determine whether an extension of time should be permitted. Unfortunately, the issues I required information on were not addressed by the Applicant. Rather he provided the following reasons, together with various documents referred to above.

“I was employed by Airflite Engineering from the 31st March 2008 up until 04 December 2008 as my statement does show.

There was a number of unrealistic expectations from the management and supervisors my letter does show in the separate attachment. This is clearly defined. I will email this letter for your assessment and review. Management at Airflite had asked me to write a letter why my performance was not up to standard and reasons at my performance during my last tenure.

I have wrote Airflite the same letter as to performance issues and other issues I had after my termination. They have not responded to me at all and this is reason for the delay as stated in item (A) for my application for unfair dismissal. Also there was no fairness to me at all and other persons in similar position ref item (F). I also was not aware that management was going to write me a three page termination letter after it had taken affect as to my circumstances to my termination. I sent several letters to Airflite management in response to the termination letter with no response at all. This is the reason for the delay.

I will send all information I have and letters and qualifications and resume and I hope this will be enough information to assist you in determining whether there are exceptional circumstances that exist for an extension of time to be allowed.”

[9] The WR Act provides in s.643(14) that an application of this type must be lodged within 21 days after the day on which the termination of employment took effect or such period that the Commission allows.

[10] It is unclear to me the reason for the delay in lodging the Application, although a reasonable inference is that the Applicant suffered a range of illnesses during that period. Even after drawing that inference I cannot find that there was a reasonable explanation or reason for the delay. The medical assessments the Applicant provided make it clear that for long periods during the five years he was well and in my view quite capable of lodging an application. There was certainly no justification provided for the delay of nearly five years.

[11] It seems the Applicant became aware of his dismissal when it occurred in December 2008. There is no information that the Applicant provided that addresses any actions that he took to dispute the dismissal.

[12] I find that the Respondent will clearly suffer substantial prejudice should this application be allowed as it is five years since the dismissal took effect. On this consideration alone it would be extraordinary to allow the application as it would be most improbable that the Respondent could reasonably be able to establish their case without major effort and expense, as the persons with knowledge at the time may not be employed, or able to be located, or may not now have clear recollections of events.

[13] It is unclear what is being asserted by the Applicant regarding the merits of the application, although it is clear that he had a strong view that various individuals, most likely supervisors, had unrealistic expectations of him. Therefore the merits of the application seem to be related to performance issues and the Applicant disputing that he had not performed satisfactorily based on unrealistic expectations of what a reasonable person should expect an employee was capable of performing. I do not have any views of the Respondent with respect to merits of the application.

[14] The fairness as between the Applicant and other persons in a similar position weigh heavily against allowing the extension of time. On this ground alone I consider the application should not be allowed.

[15] Taking into consideration all of those matters I am not prepared to allow the application. Indeed I can think of no circumstances that an application nearly five years late should be allowed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 4 December 2013.

Respondent, 25 November 2013.

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