Simon Hanrahan v Brooks Hire Service Pty Ltd
[2022] FWC 1954
•25 JULY 2022
| [2022] FWC 1954 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Hanrahan
v
Brooks Hire Service Pty Ltd
(U2022/5220)
| COMMISSIONER WILLIAMS | PERTH, 25 JULY 2022 |
Application for an unfair dismissal remedy
Mr Simon Hanrahan (the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Brooks Hire Service Pty Ltd (the respondent).
Mr Hanrahan’s application says he was notified of his dismissal on 8 March 2022 and the dismissal took effect that day. The respondent confirms these dates are correct. The applicant ‘s application was made on 9 May 2022.
The application has been made more than 21 days after the dismissal took effect.
Section 394 (2) 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 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.
“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.”
Consequently, the Commission’s staff wrote to the applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in his case.
The applicant provided a written response with a number of attachments: being some text message conversations, bank records and an email.
The respondent in its Form F3 ‘Employer response’ objects to the applicant being granted an extension of time and has provided submissions in support of their position.
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.
The applicant ‘s reason for the delay
In his response to the Commission on 26 May 2022 the applicant says his circumstances are exceptional because he called the Commission immediately after he was dismissed and reported it.
The applicant says he paid Mr Jamie Hawkins, from Unfair Dismissal Solutions to represent him at the Commission. The applicant has submitted an email and phone correspondence he says are between himself and Mr Hawkins.
This information provided by the applicant comprises the following.
Firstly, an invoice from Unfair Dismissal Solutions addressed to the applicant apparently dated 9 March 2022.
Secondly, an email from Mr Hawkins to the applicant dated 14 March 2022 which amongst other things says that his application has been drafted and lodged with the Commission.
Next, there is a series of text messages in late April 2022 between the applicant and Mr Hawkins and what appears to be a receipt dated 26 April 2022 for a payment from the applicant to Mr Hawkins.
Next, on 10 May 2022 there are text messages with apparently Mr Hawkins requesting the applicant send Mr Hawkins his bank BSB and account number, which the applicant does. There is then a record which appears to be of a payment being made from Mr Hawkins to the applicant.
The applicant in his submission to the Commission does not explain the context or circumstances surrounding these interactions between himself and Mr Hawkins, nor how this amounts to exceptional circumstances, nor how it explains all or any of the delay in his application being made.
The Commission’s records show that on 9 May 2022 this application currently before the Commission was lodged by Mr Hawkins on behalf of the applicant. The application states that Mr Hawkins is the applicant ‘s representative.
The next day, on 10 May 2022 the Commission’s records show that Mr Hawkins filed a Form F 54 - ‘Notice that lawyer or paid agent has ceased to act for a person’ which advised that Mr Hawkins had given notice that he had ceased to act for the applicant.
Considering the applicant’s explanation for the delay in his application being made more than 21 days after his dismissal took effect, I firstly note that the fact he had spoken to the Commission on the phone is neither an exceptional circumstances nor does it at all explain any of the delay in making his application.
However, late lodgement of an application due to a representative’s error may certainly be one factor in favour of granting an extension of time to an applicant. When considering supposed representative error, the case law distinguishes between delay caused by the representative where the applicant employee is blameless and other circumstances where the employee has themselves contributed to the delay. For example, where an application is delayed because the employee has left the matter in the hands of their representative but not followed up their claim this would not support an extension of time being granted.
In this case the onus is on the applicant to demonstrate to the Commission that an extension of time should be granted. Whilst the information provided demonstrates there were communications between the applicant and Mr Hawkins the full context of this is not at all clear and the Commission is not able to be satisfied that representative error was the explanation for any of the delay let alone all of the quite lengthy delays in making this application.
Consequently, I am not satisfied that on the evidence before me that there were exceptional circumstance nor was there an acceptable reason for the delay.
Did the applicant first become aware of the dismissal after it had taken effect?
The applicant became aware of his dismissal on the day it took effect.
Action taken to dispute dismissal
The applicant has not, other than through this application taken action to dispute his dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
The termination of employment letter dated 8 March 2022 provided to the applicant refers to the applicant having been suspended on pay on 3 March 2022 following allegations of attempted fraud and unbecoming behaviour. The letter says that a subsequent investigation uncovered that the applicant knowingly requested payments to Centrelink be withheld. In the letter it says the applicant was given the opportunity to discuss the incident at a meeting on 8 March 2022 with his support person.
The letter says that following the investigation it was considered that the applicant ‘s conduct was in breach of his contract terms and conditions and so the respondent had decided to terminate his employment. The applicant was dismissed with payment in lieu of notice.
In the response filed by the respondent it is stated that on the balance of probabilities the applicant knowingly attempted to defraud a third party through requesting false documents through the respondent’s payroll department and attempted to have legally binding payments withheld from Centrelink.
The application filed says that the applicant had requested to know the difference a particular deduction would have on his pay in hand and if that deduction was taken out before or after tax. It says the allegation that the applicant had attempted to commit fraud or requested the respondent withhold lawful payments to Centrelink is absurd. The applicant asserts the payroll officer misunderstood what was requested. For these reasons it is submitted that the dismissal was not for a valid reason that was unfair.
It is clear that there is a dispute between the applicant and the respondent as to both what occurred in the workplace and whether or not whatever did occur amounted to a valid reason for his dismissal. These are issues that would necessitate a full court hearing of the application which of course is not required at this point when the Commission is only determining whether or not an extension of time should be granted for the applicant to file his application. Consequently I view the merits of the case here as a neutral factor.
Fairness as between the person and other persons in a similar position
There is no information before the Commission regarding fairness between the applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR744144] to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
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