Scott Dubowec v Civmec Construction and Engineering Pty Ltd

[2015] FWC 212

[2015] FWC 212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Dubowec
v
Civmec Construction and Engineering Pty Ltd
(U2014/15448)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Scott Dubowec alleged that the termination of his employment by Civmec Construction and Engineering Pty Ltd was unfair.

[2] Mr Dubowec’s employment with Civmec ended on 8 August 2014 and he did not file his unfair dismissal application until 26 November 2014. The application was therefore not made within 21 days of the date of the dismissal.

[3] The application was listed for an extension of time hearing on 8 January 2015 but Mr Dubowec did not attend. Mr Dubowec was notified of the date of the hearing on 22 December 2014. On 6 January 2015, he advised that he only received the notice of hearing on 5 January 2015 and advised that he was not available before 18 January 2015. On the same day Mr Dubowec was asked to provide evidence to support his application for an adjournment and to explain why he did notify the Commission earlier of his unavailability. The next day Mr Dubowec advised that he would attend the hearing but later that day he advised that “due to [his] current work commitments and other things [he had] going on in [his] life’ he would not be attending. Mr Dubowec was advised that the hearing would proceed and a decision made based on the material before the Commission and any evidence given at the hearing.

[4] I refused Mr Dubowec’s application for an adjournment as he provided insufficient evidence to support such an application.

[5] At the hearing Ms Baptist appeared for Civmec and gave evidence on its behalf.

[6] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria.

The reason for the delay

[7] Mr Dubowec’s employment was terminated due to redundancy.

[8] Mr Dubowec filed material in support of his application for an extension of time. In that material he advised that within days of his redundancy he had contacted the AMWU and advised that he had been made redundant but a trades assistant had been placed in his position. He was advised that nothing could be done. Mr Dubowec advised that at the time he was unwell and did not investigate his options earlier. Mr Dubowec said that the AMWU did not tell him about the Commission. After his health improved he began to investigate his options and was advised to contact the Commission.

[9] Mr Dubowec had been put on notice that if he relied on a medical condition he needed to provide a medical certificate or report. The only medical certificate provided by Mr Dubowec to support this claim was dated 16 July 2014 and advised he was unfit for work until 17 July 2014. Nothing in that medical certificate would support a finding that Mr Dubowec was incapable of making inquiries about his options after 8 August 2014.

[10] Mr Dubowec stated that he was unaware of the Commission. It is not unusual for employees to be unaware of their unfair dismissal rights or of the Commission.

[11] While not articulated clearly from Mr Dubowec’s material he may be submitting that his application was late due to representational error. I am not able conclude on the material before me that there was representational error. Mr Dubowec’s evidence does not suggest that Mr Dubowec instructed his union to file his unfair dismissal claim and it did not do it. At the highest, the union told Mr Dubowec that nothing could be done. Even accepting that this is true recollection of the union’s advice and accepting that the advice was incorrect that does not explain the whole of the delay.

[12] I do not consider that Mr Dubowec has provided a reasonable explanation for the whole of the delay in making the application. From his own material he formed the view at the time his employment ended that this was not genuine redundancy. Despite this he did not file an application for over three months. Even if I accept that his union gave him incorrect advice and I am unable to make any finding about that, there is insufficient evidence before me to explain what prevented Mr Dubowec, at an earlier time, from getting the information and advice that he subsequently obtained prior to lodging his application.

[13] There is insufficient evidence before me to find that Mr Dubowec’s medical condition prevented him from making inquiries and lodging the application. Mr Dubowec’s reasons for the delay weigh against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[14] Mr Dubowec was aware of the dismissal when it took effect and was given information on that day which called into question, in his mind, the genuineness of the redundancy. This weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[15] Apart from advising the AMWU that he had been made redundant Mr Dubowec did not take any action to dispute the dismissal. This weighs against the granting of an extension of time.

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

[16] No particular prejudice to Civmec was identified. This weighs in favour of the granting of an extension of time.

The merits of the application

[17] Mr Dubowec submitted that his position was not made redundant because someone filled his position immediately. Mr Dubowec denied that he was offered alternative employment.

[18] Mr Dubowec said whilst he was on sick leave, he received a phone call from Ms Baptist in which she told him that “due to losing work contracts, they have to downgrade the employees and [he] was one of them.” He said that the redundancy information was sent by text message. Mr Dubowec also noted that there were two other machine operators and only he was made redundant.

[19] Ms Baptist gave sworn evidence that there had been a downturn in work due to a loss of contracts. As a result it needed to reduce staff. In June 2014, it had 377 employees and by 21 August 2014, it had 331. As a result of this downturn it did not need as many machine operators, the job Mr Dubowec was employed to do. Six employees were made redundant in August 2014 including Mr Dubowec. Ms Baptist gave evidence that Mr Dubowec was offered a position as a trades assistant but he did not want to do that work. In October 2014 they obtained a new contract and as a consequence they employed some additional boiler makers/welders. At the same time an existing employee was promoted to the position of machine operator to undertake the additional work that came with the new contract.

[20] I am not able to make any assessment of the merits as there are factual disputes between the parties about whether the position was redundant and whether Mr Dubowec could have been redeployed. Neither party raised any issue about consultation. These factual disputes have not been tested. However this is not a case which on its face is unarguable and I find that this weighs in favour of extending time.

Fairness as between the person and other persons in a similar position

[21] No submissions were made on this criterion.

Conclusion

[22] This is not a case where the strength of Mr Dubowec’s claim outweighs the lack of a reasonable explanation for the delay in lodging the application. I am therefore unable to find that there are exceptional circumstances which warrant the granting of an extension of time and therefore Mr Dubowec’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms S. Baptist appeared on behalf of Civmec Construction and Engineering Pty Ltd

Hearing details:

2015;

Melbourne:

8 January.

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