Shaun Webster v Kentz Pty Ltd

[2015] FWC 3475

[2015] FWC 3475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Webster
v
Kentz Pty Ltd
(U2015/1433)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Shaun Webster alleged that the termination of his employment by Kentz Pty Ltd on 25 February 2015 was unfair.

[2] Mr Webster’s unfair dismissal application lodged on 30 March 2015 was not made within 21 days of the date of dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Mr Webster gave evidence that he did not lodge his application form within the 21 day time limit because he was not aware of his rights. He said he was not told about unfair dismissal and his union would not help because he was unfinancial.

[6] Mr Webster’s evidence was that he approached his union about two weeks after he had been dismissed. Up to that time, he had decided not to pursue his claim. He said that it was only after this that someone told him about the Fair Work Commission.

[7] Kentz gave evidence that Mr Webster was provided with a copy of the Fair Work Information Statement on commencement of employment and that it advises employees of their right to make an unfair dismissal claim and advises that there is a 21 day time limit. Mr Webster cannot recall receiving this document.

[8] That Mr Webster was unaware of his unfair dismissal rights is not unusual. His reasons for the delay weigh against extending time.

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

[9] Mr Webster was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against extending time.

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

[10] Mr Webster did not dispute the dismissal once it had occurred. This weighs against extending time.

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

[11] It was submitted that Mr Webster’s position has now been filled and if Mr Webster were reinstated this would disadvantage the other employee. Further, it was submitted that some of the persons involved are no longer employed by Kentz and that would make it more difficult to call them as witnesses. I am satisfied that Kentz would suffer some prejudice if an extension of time was granted but in the absence of specific evidence about the unavailability of certain witnesses, it does not weigh against extending time.

(e) the merits of the application;

[12] Mr Webster was dismissed for a safety breach. He denies the allegation.

[13] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[14] No relevant submissions were made on this criterion.

Conclusion

[15] I find that there are no exceptional circumstances. The merits of Mr Webster’s claim do not outweigh the lack of a reasonable explanation for the delay. The application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Webster on his own behalf.

C. McNeill for the Respondent

Hearing details:

2015.

Melbourne and Perth by video link:

20 May.

 1   [2011] FWAFB 975

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