Shane Halse v Premium Casing Services Pty Ltd T/A Premium Casing Services

[2014] FWC 7016

[2014] FWC 7016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shane Halse
v
Premium Casing Services Pty Ltd T/A Premium Casing Services
(C2014/4394)

COMMISSIONER WILLIAMS PERTH, 8 OCTOBER 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Shane Halse (Mr Halse or the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] Mr Halse’s application states that he was dismissed on 8 April 2014. His application was made on 12 May 2014. The application was made after the 21 day time limit had passed.

[4] Consequently I wrote to Mr Halse explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submission to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Mr Halse has provided a written submission and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

The reason for the delay

[6] Mr Halse has explained that the dismissal correspondence was sent by his employer to him via email and he did not open this until 9 April 2014, the day after he had been dismissed, and only on this day became aware of his dismissal.

[7] I find that this as an acceptable reason for a delay of one day in this instance.

[8] Mr Halse says that having been dismissed he was in shock and in disbelief and was left in a state of bewilderment and confusion and did not know what to do or who to turn to.

[9] Unfortunately when an employee is dismissed feelings of upset and confusion and being uncertain what to do will be quite common.

[10] The applicant explains that he also had to move house not long after being dismissed and so was in a state of upheaval and turmoil. He says he then focused on relocating and setting up his home.

[11] Whilst the applicant’s decision to give priority to moving house and setting up his new home is understandable it is a decision for each individual having been dismissed how they prioritise the competing demands on their time including making an application to this Commission.

[12] Mr Halse says that he did seek out legal advice however this was the day before the 21 day time limit apparently expired. He explains that he told the solicitor that it was not possible for him to make an unfair dismissal application within that one day remaining of the time limit. The applicant has given no explanation as to why that was not possible.

[13] He says the solicitor then informed him that he could still make an application “under general protections” which the applicant says he has made his application under which he was told allowed a 28 day application period.

[14] This advice from the solicitor was not correct because an application alleging contravention of the Act’s general protection provisions must be made within 21 days of the dismissal. If this was indeed a representative error it is apparent from the applicant’s explanation that he then understood he needed to make his application by 7 May 2014 however in fact it was not made until 12 May 2014.

[15] Accepting that the representative error in this instance was an acceptable reason for part of the delay in making this application it would only be a reason for the delay up to 7 May 2014.

[16] The applicant then says that on 7 May 2014 and again on 8 May 2014 he had technical computer difficulties emailing his application and so decided on 8 May 2014 to post his application to the Commission which was received on 12 May 2014.

[17] It is quite common for individuals to experience computer difficulties and this is certainly not an unusual circumstance. Further the applicant had a range of other options to ensure his application was received earlier than it was rather than posting the application which he would have appreciated meant a number of additional days would pass before it was received in the Commission.

[18] Given the applicant was operating under the belief that his application needed to be made by 7 May 2014 these reasons for the further delay that meant the application was not made until 12 May 2014 are not in my view acceptable reasons for the delay.

[19] Considering the applicant’s reasons for the delay I am not satisfied that these reasons amount to acceptable reasons for all of the delay in making this application.

Any action taken by the person to dispute the dismissal

[20] There is no evidence that the applicant took any action to dispute his dismissal other than the making of this application.

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

[21] There was a lengthy delay in this matter however there is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[22] Mr Halse’s application on its face and the explanations of the reasons he believed he was dismissed, which he explained during a conference on this application on 4 June 2014, do not disclose that there is an arguable case that the respondent has contravened the general protections provisions. Consequently the lack of merit in this application weighs against finding that there are exceptional circumstances.

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

[23] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[24] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[25] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is hereby dismissed.

COMMISSIONER

Final written submissions:

Applicant, 19 June 2014

Respondent, 4 July 2014

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