Steven Ferreira v Spa Beauty & Wellness Pty Ltd

[2015] FWC 4920

[2015] FWC 4920 [Note: An appeal pursuant to s.604 (C2015/5082) was lodged against this decision - refer to Full Bench decision dated 9 October 2015 [[2015] FWCFB 6934] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Ferreira
v
Spa Beauty & Wellness Pty Ltd
(U2015/5290)

COMMISSIONER RYAN MELBOURNE, 20 JULY 2015

Application for relief from unfair dismissal - extension of time refused.

[1] The Applicant was notified by the Respondent on 28 January 2015 that his full time position as Warehouse Manager was redundant as a result of a restructure within the Respondent’s business. The Applicant was invited to apply for available positions as a part time Production and Logistics Coordinator, or a Warehouse person or as a New Business Development Representative.

[2] Shortly after this date the Applicant commenced a period of stress leave.

[3] The Respondent concedes that the Applicant was effectively dismissed on 9 April 2015.

[4] On 23 April 2015 the Applicant filed a General Protections application in relation to his dismissal (C2015/853) and the Applicant identifies that one of the reasons for filing the General Protections application was to seek a determination from the Commission that his redundancy was not a case of genuine redundancy. The Applicant identifies that “after discussion with Commissioner Blair on April 29 2015 Steven formed the opinion the most appropriate action was to discontinue the General Protections Application and re-apply for an Unfair Dismissal Claim. This is due to the Fair Work Commission being unable to make a ruling in a General Protections Claim and that there was a high probability that the matter would be referred to the Federal Magistrates Court for a prohibitively expensive arbitration and subject to a lengthy wait for a court date.” The Applicant subsequently discontinued his General Protections application.

[5] The Applicant subsequently filed the application in this matter on 8 May 2015, which was outside the 21 day time limit set by s.394(2)(a) of the Act.

[6] The Applicant seeks an extension of time in which to lodge his application for an unfair dismissal remedy.

[7] Both the Applicant and the Respondent have agreed that the Commission determine the extension of time matter on the papers. The Applicant filed an Outline of Submission for Extension of Time Request and a witness statement. The Respondent filed a Form F3 with detailed comment in relation to the dismissal and the extension of time matter.

[8] Section 394(2)(b) permits the Commission to grant an applicant an extension of time in which to make an application for an unfair dismissal remedy but only if the Commission is satisfied that there are exceptional circumstances warranting an extension of time. A consideration of the existence of exceptional circumstances requires the Commission to take into account the criteria set out in s.394(3). Whether any single circumstance or set of circumstances is exceptional requires that the circumstances “must be out of the ordinary course, or unusual or special or uncommon but need not be unique, or unprecedented or very rare”. 1

[9] Having carefully taken into account the relevant criteria set out in s.394(3) of the Act the Commission declines to grant an extension of time to the Applicant in which he could file an application for an unfair dismissal remedy.

[10] The Applicant’s application for an unfair dismissal remedy was filed by the Applicant’s representative, Mr Jason Freibergs of Australian Dismissal Solutions. Mr Freibergs was also the Applicant’s representative in relation to the General Protections application.

[11] It is clear that the Applicant had sought advice from Mr Freibergs of Australian Dismissal Solutions prior to filing his General Protections application and in relation to filing his Unfair Dismissal application. There is nothing put by the Applicant which suggests that he could not have made an Unfair Dismissal application instead of making a General Protections application. On the face of it the material before the Commission suggests that the Applicant on advice from his representative made a calculated choice to initiate a General Protections application rather than an Unfair Dismissal application.

[12] The Applicant has provided an acceptable reason for the delay between 29 April 2015 and 8 May 2015 in filing his Unfair Dismissal application but there is nothing put by the Applicant which would suggest that the Applicant has an acceptable reason for the delay in filing an Unfair Dismissal application between the date of dismissal and the 29 April 2015.

[13] Whilst the Commission does not engage in any detailed consideration of the merits of an unfair dismissal application when considering an extension of time application some regard must be had to the merits of the unfair dismissal application as s.394(3)(e) requires it. In the present matter the merits of the Applicant’s unfair dismissal application cannot be considered even if an extension of time is granted until the initial matter of whether the dismissal is a case of a genuine redundancy is determined. So much is clear from the requirement of s.396. The Applicant would not appear to have a meritorious case in relation to unfair dismissal as the material relied on by the Applicant suggests that the dismissal may have been a case of genuine redundancy.

[14] As the application for an unfair dismissal remedy filed by the Applicant in this matter is out of time the application is dismissed.

COMMISSIONER

 1   Nulty v Blue Star Group P/L[2011] FWAFB 975 at para 13.

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