Rodney Armfield v Leighton Contractors Pty Ltd

[2013] FWC 5581

[2013] FWC 5581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Armfield
v
Leighton Contractors Pty Ltd
(U2013/10233)

DEPUTY PRESIDENT MCCARTHY PERTH, 13 AUGUST 2013

Application for relief from unfair dismissal. Extension of time not granted.

[1] Mr Rod Armfield (the Applicant) lodged an application for unfair dismissal remedy (the application) on 6 June 2013 (application date) claiming he was unfairly dismissed from his employment with Leighton Contractors Pty Ltd (the Respondent) on 2 May 2013 (date of dismissal). The application was therefore outside the time allowed by the Fair Work Act 2009 (the FW Act).

[2] The FW Act requires such applications to be lodged within 21 days after the dismissal took effect [s.394(2)(a)]. The Fair Work Commission (FWC) may allow a further period for the lodgement of an application if is satisfied that there are exceptional circumstances.

[3] The Respondent lodged an employers response to the application for unfair dismissal remedy (the employers response) in which the Respondent indicated it objected to the application on the grounds that there were no exceptional circumstances that prevented the application being lodged within the time allowed.

[4] I wrote to the Applicant on 25 July 2013 informing him of the provisions of the FW Act and requesting him to provide me with information to assist me in determining whether exceptional circumstances exist for a further period to be allowed for the application to be lodged.

[5] The Applicant responded on 29 July 2013 in which he indicated he had made an online enquiry with the Fair Work Ombudsman (FWO) on 16 May 2013, which he thought was to dispute his dismissal. He states that he received a phone call on 24 May 2013 (presumably from the FWO) informing him that he had sent it (presumably meaning his enquiry) to the wrong place. The Applicant was in New Zealand when he received the phone call. He stated that he then returned home (presumably meaning Western Australia) and found the correct website and lodged the application. The information provided by the Applicant in respect of the merits of the termination appear to be related to drug test results which he says were a consequence of him being given something he was unaware of. He also asserts that the manner of his dismissal was inappropriate if not unfair and private and confidential information relating to the circumstances was not handled properly.

[6] The Respondent also provided a statement supporting their objection to an extension of time for the application to be lodged. They say that the Applicant was dismissed on 2 May 2013 and he was notified of that dismissal on that same day. The Respondent was contacted by the Applicant's union and details of the circumstances surrounding the dismissal were provided to a union representative on 6 May 2013. The Respondent was advised on 9 May 2013 by the union representative that the Applicant would not be proceeding further with the matter.

[7] The Respondent states that the Applicant was contacted on 24 May 2013 by the FWO and it appears he did not take any steps to follow up on the application prior to that date nor any steps until 6 June 2013 following that contact.

[8] I find that the reason for the delay was a combination of a number of things. It is unclear whether the Applicant's action actually involved lodging the application or simply making an enquiry. For the purposes of my considerations here I will presume that the Applicant lodged the relevant form (Form F2). Secondly when the Applicant was informed by the FWO of his error on 24 May 2013 he was in New Zealand. The Applicant gave no further information of any further action taken by him until he lodged the application on 6 June 2013. He appears to have made no contact with the FWO either prior to 24 May 2013 or after. He appears to have made no contact with the FWC between 24 May 2013 and the lodgement of the application on 6 June 2013.

[9] The Applicant became aware of his dismissal on the date that it took effect.

[10] The Applicant appears to have taken action to dispute his dismissal by contacting his union although he made no mention of this. I have no information of any advice that the Applicant may have been given by his union. I accept the statement of the Respondent that the union involved advised the Respondent on 9 May 2013 and that the Applicant, or at least the union on his behalf, would not be disputing the dismissal. The Applicant should have been aware at that time or very shortly afterwards that if he wished to make an application he would have to do so on his own behalf without union representation. I accept that the action he did take was to lodge an application with the FWO, although there is some doubt he did actually purport to lodge an actual application.

[11] I do not consider that there would be prejudice to the employer caused by the delay.

[12] The merits of the application turn on the ascertaining of facts and especially mitigating circumstances relating to the positive drug test, namely the claim by the Applicant that he knowingly consumed a drug or drugs. However the Applicant also states that he was hospitalised as a consequence, and so he must have known of the condition he had prior to presenting himself for work. The merits of his case on his own account therefore are not strong. Even allowing for and accepting his assertions regarding the procedures involved with his dismissal whilst he might have an arguable case it does not appear to me to be strong.

[13] In my view other persons in a similar position would be expected firstly to ensure that they lodged the application in FWC and especially take immediate remedial action as soon as they became aware that it had not been lodged in the correct place, regardless of whether they were in New Zealand at the time or not.

[14] I'm not satisfied that exceptional circumstances exist and therefore will not allow the application beyond the 21 days allowed and it is therefore dismissed.

DEPUTY PRESIDENT

Written submissions:

Applicant 29 July 2013

Respondent 7 August 2013

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