Steven Maddison v Underground Services Australia Pty Ltd

[2015] FWC 1627

[2015] FWC 1627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Maddison
v
Underground Services Australia Pty Ltd
(U2015/206)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Steven Maddison alleged that the termination of his employment by Underground Services Australia Pty Ltd on 19 December 2014 was unfair.

[2] His unfair dismissal application lodged on 15 January 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Are there exceptional circumstances?

(a) the reason for the delay;

[4] Mr Maddison said that he misread the form and thought the 21 days was 21 business days. It is not unusual for employees to think that 21 days means 21 business days. Mr Maddison signed his application form on 11 January 2015, yet did not lodge it electronically until 15 January 2015.

[5] Mr Maddison’s reason for the delay does not weigh in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[6] Mr Maddison was aware of the dismissal on the day it took effect, so he had the full 21 days to lodge his application. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[7] Mr Maddison said he did ask why he was being dismissed, but Mr Burns was unable to provide an explanation. I consider this criterion to be neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[8] Mr Maddison submitted that there would be no prejudice to Underground Services because the company was shut down for two weeks.

[9] Underground Services says it will be prejudiced if it now has to defend an unfair dismissal claim. Had it been informed of Mr Maddison’s issues, it says it could have responded in a different and less costly manner.

[10] I do not accept this submission. Even if an extension of time were granted, it would be open to Underground Services to resolve this matter in the same manner. Apart from having to defend an unfair dismissal claim, I find that there is no prejudice to Underground Services. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[11] Underground Services terminated Mr Maddison on grounds of redundancy. The letter dated 19 December 2014 advised Mr Maddison of this and advised him that there was no position to which he could be redeployed. Mr Maddison said he could have been redeployed. Mr Maddison was paid in lieu of notice. Mr Maddison said he was not given any warning that this would happen.

[12] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, I am unable to conclude that Mr Maddison’s claim has no prospects of success. This weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[13] Mr Maddison submitted that no other employee was made redundant. This criterion is neutral.

Conclusion

[14] I do not find that there are exceptional circumstances warranting the granting of an extension of time. Mr Maddison’s lack of an acceptable explanation for the delay in lodging his application does not support such a finding. The merits of the claim and the lack of prejudice to Underground Services are not so strong as to outweigh the other criteria. Mr Maddison’s application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR561805>