Stephen LaRose v AE&E Australia Pty Limited (in liquidation)
[2011] FWA 4497
•14 JULY 2011
[2011] FWA 4497 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen LaRose
v
AE&E Australia Pty Limited (in liquidation)
(U2011/5943)
DEPUTY PRESIDENT MCCARTHY | PERTH, 14 JULY 2011 |
Termination of employment - out of time.
Background
[1] On 14 March 2011, Mr Stephen LaRose (the Applicant) lodged an Application for Unfair Dismissal Remedy (the Application). He asserts that his employment with AE&E Australia Pty Limited (in liquidation) (the Respondent) was terminated unfairly.
[2] The Application states that the Applicant was employed by the Respondent from 18 November 2009 to 1 September 2010. On that basis, the Application was lodged almost 28 weeks after the termination took effect, or 26 weeks after the time allowed to lodge applications of this nature by operation of s.394(2)of the Fair Work Act 2009 (the FW Act). Therefore, for the Application to be able to proceed, Fair Work Australia (FWA) must allow a further period beyond 14 days from the date the termination took effect 1.
[3] In an attachment to the Application the Applicant asserts that the reasons for termination was given to his union, which he found out about after contacting them some time later. He asserts that the union did not pursue the matter on his behalf because of what they were told regarding the reasons for his termination.
[4] The matter was listed for conciliation on 11 April 2011. Prior to that conciliation, BRI Ferrier (NSW) Pty Ltd (the Administrators) wrote advising FWA that they had been appointed as Voluntary Administrators for the Respondent. The Administrators referred to the Corporations Act 2001 (the Corporations Act) and in particular, sections 440A, 440D and 440F of that Act, which they say obliges any proceedings against the Respondent to be stayed whilst it remained in voluntary liquidation. A notice was issued cancelling the conciliation listing.
[5] Following the Application being allocated to me, I sought explanation from the Applicant as to the reasons why I should allow the Application beyond the 14 days allowed. 2 The Applicant responded on 27 April 2011, asserting that he pursued the Application with the support of his union who indicated that they would “take the matter on.” He states that he completed a statement and faxed it to them so that they could lodge an application.
[6] The Applicant states that he contacted his union “quite sometime [sic] later” and he then found out that the union had not lodged an application. He asserts that the union then told him that it was too late to now lodge an application because it was outside the allowable time. The Applicant provided no dates, or even approximate dates, regarding these events.
[7] The Applicant then says that he “only recently found out” (again with no date or approximate date provided) that he could lodge an application beyond the 14 days and could seek permission for the 14 day time limit to be extended.
[8] On 24 June 2011, I wrote to the Applicant requesting further particulars about his assertions regarding his interaction with the union. The Applicant provided details of a number of conversations he had with various officials of the union he was clearly a member of. 3 He also states that “months later” he “had a chance run in” with a senior official of the union in question. He says that following that interaction he then sought legal advice and it was then that he found out he could lodge an application out of time and seek permission for the time allowed to be extended.
[9] I wrote to the Administrators on 14 June 2011, seeking advice on the status of the Respondent. I did not receive a response. On 23 June 2011, I caused the Administrator to be contacted. A further copy of the letter dated 14 June was sent to the Administrator as apparently they had misplaced the earlier letter. On 6 July 2011, I again caused the Administrator to be contacted as there had still been no response to my request for information on the current status of the Respondent. On 11 July 2011, the Administrator advised that the Respondent was to be wound up voluntarily. The administrator also drew my attention to s.500(2) of the Corporations Act which they say provides that after the passing of a resolution for the winding up of a company, that “no action or civil proceeding is to be proceeded against the company except by leave of the Court.”
Consideration
[10] FWA must be satisfied that there are exceptional circumstances before it may allow an application to be made if it is lodged after the time allowed.
[11] The reasons for the delay explained by the Applicant are not convincing. The explanations he provided were general and vague. It would appear from the Applicant’s account that he presumed, and he had a reasonable basis to make that presumption, that the matter would be pursued and an application lodged. This action I consider to be action the Applicant took to dispute his dismissal.
[12] It appears that the Respondent went into voluntary administration in November 2010, some four months before the Application was lodged. It is obvious that, with the winding up of the Respondent, allowing this application would seriously and significantly prejudice the Respondent.
[13] I make no finding about the merits of the Application. I do not consider it would be fair as between the Applicant and other persons in a similar position to allow the Application.
[14] Overall, I do consider exceptional circumstances exist. First, there is the circumstance of the Applicant’s asserted communications with a union, which if his account is accurate, would indicate he thought an application would be lodged. There is also the exceptional circumstance of the Respondent going into liquidation. Those exceptional circumstances are competing, and in my view, weigh against the Application being allowed, especially given the times involved.
[15] I have decided not to allow a further period for the Application to be lodged.
DEPUTY PRESIDENT
1 s.394(3)
2 s.394(2)
3 I have decided not to identify the union the Applicant refers to as the only information I have is that provided by the Applicant
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