Stephen Roderick v Strategix Training Group Pty Ltd

[2013] FWC 7862

[2013] FWC 7862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Roderick
v
Strategix Training Group Pty Ltd
(U2013/11628)

COMMISSIONER WILLIAMS PERTH, 9 OCTOBER 2013

Termination of employment - jurisdiction - extension of time.

[1] This matter involves an application made by Mr Stephen Roderick (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Strategix Training Group Pty Ltd (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator on 22 August 2013 however it was not resolved and so it has been referred to me for determination.

[3] The application was made on 18 July 2013 and the applicant states that the dismissal took effect on 25 May 2013. The respondent in their answer assert the dismissal took effect on 10 June 2013.

[4] The respondent objects to the application on the basis that the application was made more than 21 days after the dismissal took effect.

[5] On 11 September 2013 I wrote to the applicant inviting him to provide any evidence or submission to demonstrate that there were exceptional circumstances warranting an extension of time being granted within which to make the application. This invitation was sent by email and post.

[6] No response was received from the applicant. A follow up letter was sent by email on 2 October 2013 advising that if he did not respond the file would be closed.

[7] As at the date of this decision no response has been received nor has the applicant contacted the Commission at all.

Consideration

[8] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect (see section 394(2)(a) of the Act 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.”

[9] This application was made after the 21 day time limit had passed. There is nothing before the Commission to conclude that there were exceptional circumstances warranting an extension of time being granted to the applicant for him to make the application.

[10] The application is not properly before the Commission and will be dismissed for want of jurisdiction.

[11] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

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