Sean Wray v Fleetwood Pty Ltd

[2014] FWC 5645

[2014] FWC 5645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Wray
v
Fleetwood Pty Ltd
(U2014/1789)

COMMISSIONER WILLIAMS PERTH, 27 AUGUST 2014

Termination of employment - extension of time.

[1] This decision concerns an application made by Mr Sean Wray (Mr Wray or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Fleetwood Pty Ltd (the respondent).

[2] The application was made on 22 May 2014.

[3] It is apparent from the applicant’s and respondent’s materials that the applicant tendered his resignation on 29 April 2014 advising that his employment would cease in four weeks time. The next day 30 April 2014 the respondent advised the applicant that they did not require him to work out the four weeks’ notice and advised he would be paid in lieu of this period. That letter perhaps erroneously advised him that his employment had ceased the previous day.

[4] Based on this information it is arguable that the applicant was dismissed by the respondent on 30 April 2014 or alternatively, based on the other information supplied by the applicant, that he was constructively dismissed by his manager and so his resignation on 29 April 2014 should be viewed as a dismissal. Consequently it is arguable that the applicant was dismissed on either 29 or 30 April 2014.

[5] Section 394 (2) of the Act requires applications for an unfair dismissal remedy to be made within 21 days after the dismissal took effect. It is apparent then that the application has not been made within this time limit.

[6] Consequently the applicant was invited to provide submissions on the question of whether the Commission should allow a further period for him to make this application.

[7] In his application the applicant explained that his application was made late because he was waiting for supporting evidence and weather had caused outages in his phone line and that he lives in an area where Internet coverage is limited.

[8] In his further submissions the applicant explained that he had attempted to gain copies from his past employer of the minutes of the final meeting between himself and the respondent that in his view supported his case. Attached to his submissions is a copy of an email dated Thursday, 1 May 2014 to the respondent’s Human Resources Advisor Ms O’Connor wherein the applicant requests that she forward the minutes of that meeting to him. Later that same day Ms O’Connor advised him by return email that the minutes were not finalised but that she will get this to him “...by the weekend”.

[9] Ultimately it appears the applicant did not receive the minutes of this meeting.

[10] The applicant has demonstrated that he registered with the Commission on Saturday, 17 May 2014 as an efiling user.

[11] The applicant was admitted to hospital on Monday, 19 May 2014 for a follow-up procedure resulting from an incident for which he was hospitalised 12 months prior.

[12] He says because he was in hospital he was unaware that an email he sent to the Commission did not send but as soon as he was aware of this problem he lodged the document immediately with the Commission and that Telstra have records of the outages that stopped the transmittal of documents.

[13] The applicant has not addressed any of the other matters identified in section is 394 (3) (b) through to (e).

Consideration

[14] With respect to the applicant’s desire to have a copy of minutes of a particular meeting available before he made this application that is not an acceptable reason for the delay in making the application. The choice by the applicant to delay making the application for this reason was a decision of his and his alone. There is no reason why he could not have made the application earlier than he did without having a copy of those minutes available.

[15] I accept the applicant registered with the Commission as an efiling user on 17 May 2014 which is within the 21 day time limit. This is evidence of his intention to make the application and do so within time. It appears from his explanation that he believed he had at that time made his application and only subsequently found out that that was not the case for reasons that are not clear.

[16] I accept the applicant was in hospital on 19 May 2014 and as a consequence was in all likelihood on this day unable to make an application.

[17] Being hospitalised for one day is itself in my view an acceptable explanation for all of the one-day delay in making this application if he was indeed dismissed on 30 April 2014. The other reasons for the delay being technical difficulties in sending his application on 17 May 2014 and his hospitalisation interfering with his appreciation that his application had not been sent is an acceptable reason for a further delay of one day in making this application if indeed he was dismissed on 29 April 2014.

[18] With regard to the other matters the Commission must take into account the applicant became aware of his dismissal the day he was advised of it by the respondent. The applicant has not, other than making this application, taken any action to dispute his dismissal. The very short delay will not prejudice the employer.

[19] Considering the merits of the matter the applicant explains that on 18 March 2014 he submitted his resignation but this was refused by his then manager.

[20] A little more than a month later on 28 April 2014 during a meeting with the applicant’s manager he says he was told by his manager that he did not think things could improve and so the applicant needed to make a decision between resigning from his position or being terminated. As a result of this the applicant says he resigned the following day.

[21] I note that if the applicant’s version of those events on 28 April 2014 is correct he has a sound argument that his resignation was forced upon him and so should be viewed as a constructive dismissal.

[22] Assuming for the purposes of the merit consideration that the applicant was dismissed on 29 or 30 April 2014 the fact he had tendered his resignation six weeks earlier clearly indicates the applicant had a tenuous connection to his job when he was indeed dismissed. This is not to say that the dismissal may not have been unfair but simply that even if this was shown to be the case any remedy the Commission might order, perhaps as compensation, would be extremely limited.

[23] The respondent in its answer had adopted the approach that the applicant had resigned and so has not addressed the issue of merit and consequently for the purposes of the out of time decision of the question of the merit of the application is a neutral matter.

Conclusion

[24] In this case there has been a short delay in the making of the application and I am satisfied that there were acceptable reasons for all of that delay. In the particular circumstances of this case and considering the other factors I accept that there are exceptional circumstances and an extension of time for this application to be made should be allowed.

[25] An order to that effect will be issued. Mr Wray’s application will be referred for conciliation and the parties will be contacted in due course.

COMMISSIONER

Final written submissions:

Applicant, 12 June 2014

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