Solomon Mwale v Shire of Mundaring

[2014] FWC 6442

[2014] FWC 6442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Solomon Mwale
v
Shire of Mundaring
(U2014/11688)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 OCTOBER 2014

Application for relief from unfair dismissal - extension of time.

[1] On 14 August 2014, Mr Solomon Mwale (the Applicant) lodged an Unfair Dismissal Application. The Applicant asserts that he was unfairly dismissed from his employment with the Shire of Mundaring (the Respondent). The Applicant states that his dismissal took effect on 24 June 2014. The Application was therefore lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).

[2] The reasons for the delay and why the Fair Work Commission (FWC) should accept the Application out of time were stated in the Application as follows:

“1. Initial application was lodged with the Western Australian Industrial Relations Commission (WAIRC) and was served on the respondent.

2. The respondent indicated I had lodged my complaint in incorrect jurisdiction, WAIRC. The Fair Work Commission being the correct (FWC), on basis that the respondent had significant trading activity.

3. The respondent flagged their intention to raise jurisdictional objection should the claim not be discontinued in the WAIRC.

4. My complaint in the WAIRC was to dispute my dismissal and seeking a resolution.

5. The Respondent guarantees not to raise objection to my unfair dismissal application in the FWC on the basis my application is made outside the statutory time limit.”

[3] On 20 August 2014, I wrote to the Applicant requesting that he address the considerations I must take into account in determining whether exceptional circumstances exist to allow an extension of time.

[4] On 21 August 2014, the Applicant provided further submissions. In summary the Applicant stated that:

● The Application was lodged out of time because he had initially lodged an unfair dismissal application with the Western Australian Industrial Relations Commission (WAIRC). The WAIRC unfair dismissal application was filed and served on the Respondent within the statutory timeframe provided by the WAIRC.

● He first became aware of the dismissal after it had already taken effect as his access to the Respondent’s network was disabled prior to him being informed of and handed his dismissal letter.

● The action taken by the Applicant to dispute the dismissal was lodging an unfair dismissal application in the WAIRC.

● No prejudice will be caused to the Respondent as the Respondent had guaranteed the Applicant, both verbally and in writing that they would not raise a jurisdictional objection to the Application in the FWC on the basis the Application was out of time.

[5] On 29 August 2014, the Respondent provided submissions in response. The Respondent stated that:

“On 30 July 2014, the respondent requested that the applicant discontinue the WAIRC Application and proceed with an unfair dismissal application in the Fair Work Commission (FWC). The respondent guaranteed the applicant that if the WAIRC Application was discontinued that it would not raise a jurisdictional objection to FWC on the basis that the application was made outside the statutory time limit.

The respondent does not object to the matter being heard in the Fair Work Commission.”

Considerations

[6] The Applicant submits that the reason for the delay was that he incorrectly lodged an unfair dismissal application in the WAIRC. The Applicant lodged his application in the WAIRC on 22 July 2014 which was within the 28 day statutory timeframe provided by the Industrial Relations Act1979 (WA). On 30 July 2014, the Respondent advised the Applicant that he had lodged his application in the incorrect jurisdiction. The Respondent requested that the Applicant discontinue his application in the WAIRC and “guaranteed” the Applicant that they would “not raise any objection to an unfair dismissal application” the Applicant may subsequently lodged in the FWC.

[7] I do not consider that the reason for the delay weighs in favour of a finding of an exceptional circumstance.

[8] In his submissions the Applicant appears to submit that he first became aware of his dismissal after it had already taken effect as his access to the Respondent’s network had been disabled prior to him being informed of his dismissal and provided with his dismissal letter. However, the Applicant’s dismissal letter was dated 24 June 2014 and in his application the Applicant has stated that he was notified of his dismissal on 24 June 2014. This element of my considerations does not weigh in favour of the Applicant.

[9] As outlined above in paragraph [6] the action taken by the Applicant to dispute his dismissal was to lodge an unfair dismissal application in the WAIRC. The action taken by the Applicant to dispute the dismissal weighs in favour of a finding of an exceptional circumstance.

[10] There is no prejudice to the Respondent. Indeed the Respondent has advised the Commission that it does not object to an extension of time being granted for this application despite it being lodged outside the statutory timeframe. This element of my considerations weighs in favour of a finding of exceptional circumstances.

[11] There is limited information regarding the merits of the Applicant’s application and without submissions from the Respondent regarding the merit of the application the question of merit must be given neutral weight.

[12] The fairness between the Applicant and other persons in a similar position does not weigh in favour of a finding of an exceptional circumstance.

[13] Notwithstanding the Shire not opposing the Application being allowed I do not consider that in itself creates an exceptional circumstance. Whilst it is not a common occurrence for a respondent to consent to an application being allowed, I do not consider that to be exceptional.

[14] I find that exceptional circumstances do not exist and therefore will not extend the time for the filing of the application. The application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 21 August 2014.

Respondent, 29 August 2014.

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