Shane Van Styn v Carnarvon Medical Service Aboriginal Corporation

[2015] FWC 7870

[2015] FWC 7870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Van Styn
v
Carnarvon Medical Service Aboriginal Corporation
(U2015/10062)

COMMISSIONER WILLIAMS PERTH, 18 NOVEMBER 2015

Termination of employment - extension of time.

[1] The applicant in this matter Mr Shane Van Styn (the applicant) has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is the Carnarvon Medical Service Aboriginal Corporation (the respondent).

[2] The application was made on 14 August 2015. The respondent objects to the application on the grounds it was made one day after the required time.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act permits the Commission to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s.394 of the Act which is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] I accept that the sole reason for the application being made one day after the 21 days had passed was an error made by the applicant’s solicitor in calculating the 21 day time limit.

[7] In the circumstances the representative error here is an acceptable reason for all of the delay.

Any action taken by the person to dispute the dismissal

[8] The applicant in response to a letter of termination promptly responded in writing disputing the contents of the letter and sought legal advice shortly after being dismissed.

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

[9] 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

[10] The merits of the application are disputed and are a neutral consideration with respect to this extension of time question.

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

[11] This is not a relevant factor in this matter.

Conclusion

[12] 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 and the submissions. In this case there is an acceptable reason for the delay of one day in making the application. The applicant was not responsible at all for the delay.

[13] I will exercise the discretion available to allow a further period for this application to be made. An order to that effect will be issued in conjunction with this decision.

[14] The application will be referred for conciliation.

COMMISSIONER

Final written submissions:

Applicant, 16 October 2015.

Respondent, 29 October 2015.

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<Price code A, PR573993>