Steven Rapmund v Go Karting Gold Coast Pty Ltd

[2014] FWC 5363

[2014] FWC 5363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Rapmund
v
Go Karting Gold Coast Pty Ltd
(U2014/10778)

COMMISSIONER SIMPSON BRISBANE, 18 AUGUST 2014

Application for relief from unfair dismissal - Application filed out of time - Applicant underwent surgery following termination - Reason for short delay in filing Exceptional circumstances - Extension granted.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Steven Rapmund (“the Applicant”) who alleges that the termination of his employment with Go Karting Gold Coast Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The Applicant failed to make the Application within time as the dismissal took effect on 15 June 2014 and the application was filed on 11 July 2014. The 21st day after the dismissal was Sunday 6 July 2014. Therefore in accordance with the Acts Interpretation Act the last day the application could have been filed within time was the twenty second day, being Monday 7 July 2014, and as a result the application was 4 days out of time.

[3] Before the commencement of a directions hearing on Wednesday 28 July 2014 attempts were made to contact the Respondent in order for the Respondent to participate however these attempts were unsuccessful. Consequently directions were sent for the parties to file and serve submissions in relation to the jurisdictional matter of the application being out of time, and the substantive matter. Submissions were received from both the Applicant and the Respondent, and both parties consented to the out of time matter being dealt with on the papers.

Summary of Submissions for the Applicant - Extension of Time

[4] The Applicant accepts his application was lodged out of time but says there are exceptional circumstances warranting the Fair Work Commission (the Commission) exercising its discretion to allow a further period under s.394(3) on the following basis:

a. He had major surgery on the 19 June 2014;

b. He was on pain killers;

c. He was not in the right frame of mind;

d. Nor could he write.

Summary of Submissions for the Respondent - Extension of Time

[5] The Respondent submitted statements all in connection with the substantive matter but not the out of time issue. The Applicant lodged a submission in reply to the Respondents material addressing the issues in the substantive matter.

CONSIDERATION

[6] Section 394 of the Act reads as follows:

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.

[7] The Applicant became aware that he had been dismissed on the same day the dismissal took effect, 15 June 2014. His submission advised that he had arthroscopic surgery on his shoulder four days later on 19 June and was released from hospital on 21 June.

[8] The principal reason given for the delay in filing the application was that he was highly medicated on pain killers and not in the right frame of mind or state to make the application by Monday 7 July which was the last date the application could have been filed within time. He claims the application was filed as soon as he was able to write, and says he is still unable to type.

[9] There was provided with his application evidence that he underwent surgery on 19 June at the Allamanda Private Hospital described as ‘left shoulder arthroscopy and open anterior stabilisation and open excision of AC Joint’ conducted by an orthopaedic surgeon and requiring him to spend two nights in hospital. He also provided a worker’s compensation medical certificate signed by Dr David Christie an Orthopaedic Surgeon stating that he would be ‘not able to work at all’ from 17 June 2014 to 3 August 2014.

[10] The period of time covered by the medical certificate provided by Dr Christie stating the Applicant would be ‘not able to work at all’ extended to 3 August 2014, more than three weeks after the date the application was filed on 11 July 2014.

[11] Neither party has required the other to submit to cross examination on the jurisdictional question. The Applicants claimed reasons for filing the application four days’ late (which find some support in the lengthy period covered by the medical certificate provided by his surgeon) are unchallenged. On that basis I am persuaded to accept the reasons. Having accepted those reasons I am also persuaded that those reasons for delay are exceptional circumstances.

[12] As the delay was only a period of four days there is no significant prejudice suffered by the employer including in connection with the delay. I regard the merits of the case as neutral at this stage. Section 394(3)(f) is not relevant in this case.

[13] Having considered all the matters required under the Act I am satisfied there are exceptional circumstances justifying an extension of time in this case and on that basis an extension is granted. Directions for hearing of the substantive matter will be issued with this decision.

COMMISSIONER

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