Stephen Noel Herbert v No1 Riverside Quay/BP Retail T/A No1 Riverside Quay
[2010] FWA 2088
•12 MARCH 2010
[2010] FWA 2088 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
No1 Riverside Quay/BP Retail T/A No1 Riverside Quay
(U2009/14540)
COMMISSIONER RAFFAELLI | SYDNEY, 12 MARCH 2010 |
Termination of employment, extension of time.
[1] This application was made under the Workplace Relations Act 1996 (the WR Act) before the WR Act repeal day. Consequently, the WR Act continues to apply (Item 11 Part 3 of Schedule 2, Fair Work (Transitional Provisions and Consequential Amendments) Act 2009)) and Fair Work Australia will now deal with the application on that basis.
[2] Section 643(14) of the WR Act provides that an application under section 643 must be lodged within 21 days after the day on which termination took effect. It also says:
“OR within such period as the Commission allows on an application made during or after those 21 days.”
[3] Here Stephen Noel Herbert (the Applicant) did not lodge the application within 21 days of his termination by No.1 Riverside Quay/BP Retail T/A No.1 Riverside Quay (the Respondent). His termination occurred on 12 January 2009. His application was lodged on 9 December 2009.
[4] On 24 December 2009 I invited the Applicant to provide reasons in writing as to why the lodgement time should be extended. I also invited the Respondent to provide its response. I do not propose to hold a hearing and have decided to deal with the matter on the basis of what is before me, including further reply submissions from the applicant.
[5] The onus in establishing that such time should be extended lies on the applicant. It is the applicant’s matter and it is the applicant that has failed to act in the manner prescribed in the Act.
[6] Within the relevant part of the Act a note appears referring to principles enunciated in Brodie Hanns v MTV Publishing [1995 67 IR 298.]
[7] I take due regard to those principles. Those principles are as follows:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[8] I now turn to those principles.
Acceptable explanation for the delay
[9] According to the Applicant, he had originally lodged an application pursuant to section 648 within 21 days of his termination. However, upon seeking advice from a number of law firms (he mentioned “Brydens, Turner and Freeman and Keddies Lawyers”) he was informed that both his injury matter and termination would be dealt with by the NSW Workers Compensation Commission. He then withdrew his section 648 application.
[10] The Applicant put that he was a lay person and had lodged his original application on time.
[11] The Respondent agreed that the Applicant had originally made an application within time. However, in his written contentions, there is no evidence that the law firms referred to gave him such advice. Nor does he say that any of the law firms (mentioned above) were his representative, a necessary pre-condition for a representative error claim. Further, there has been by now 310 days of delay in filing the application and no explanation for why he took so long to act.
[12] The Applicant says he acted on advice from some law firms. But no details are given as to who he spoke to and precisely what they said to him. Given that what he says they said to him was wrong (the workers compensation system cannot deal with reinstatement), I am not prepared (in the absence of stronger supporting material) to believe that they said what he contends they told him. There is no evidence they were his representatives.
[13] While the so called advice from lawyers is said to have caused him to withdraw his original claim, there is insufficient explanation as to what caused him to lodge this application and why it took him so long to do so.
[14] I find that in all the circumstances the Applicant has failed to satisfy me that there has been an acceptable explanation for the delay.
Action taken by employee to contest the termination
[15] The Applicant did lodge an earlier application. If find that he did contest the termination other than by making this current application.
Prejudice to respondent
[16] I find that there may be some prejudice to the Respondent occasioned by the delay. The size of the Respondent is not particularly relevant in this regard.
Merits of the application
[17] On the material before me I unable to find that the application is without merit.
Fairness as between the applicant and other persons in a like position.
[18] This is not a relevant consideration.
Conclusion
[19] Having duly considered all the matters put to me by both parties in light of the principles enunciated in the Brodie-Hanns decision I am not prepared to exercise my discretion so as to allow the filing of this application out of time.
[20] The application is dismissed.
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