Steven Uren v DHL Supply Chain (Australia) Pty Ltd

[2015] FWC 472

[2015] FWC 472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Uren
v
DHL Supply Chain (Australia) Pty Ltd
(U2014/14359)

COMMISSIONER WILLIAMS PERTH, 16 JANUARY 2015

Termination of employment - extension of time.

[1] This matter involves an application made by Mr Steven Uren (Mr Uren or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is DHL Supply Chain (Australia) Pty Ltd.

[2] Mr Uren was notified of his dismissal on 23 September 2014 and the dismissal took effect that same day.

[3] The application was made on 24 October 2014.

[4] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[5] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 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.”

[6] On his application Mr Uren says the reason for the delay was because he needed more time to consider the implications of duress and psychological issues to go through with this process.

[7] On 11 December 2014 I wrote to the applicant and his representative inviting them to provide any relevant evidence and submissions regarding whether or not there were exceptional circumstances that would warrant the Commission extending time to file this application. I directed that this information should be provided by 5 January 2015. This was sent to both of these individuals by post and email. Nothing was received from the applicant or his representative within the directed timeframe.

[8] A follow-up letter was sent on 7 January 2015 regarding the applicant and/or his representative’s failure to comply with the Commission’s direction and allowing them further time to comply. They were advised that the invitation to provide information was extended to 14 January 2015 and that if the information was not provided by that date this application may be dismissed. This correspondence was sent by post and email to the applicant and also to his representative.

[9] As at the date of this decision no information or response has been received from the applicant or his representative.

Are there exceptional circumstances?

The reason for the delay

[10] The reason for the delay stated on the application is that the applicant needed more time to consider the implications of duress and psychological issues to go through with this process.

[11] The applicant has not provided any medical evidence to support a finding that what he refers to as the reason for delay rendered him unable to make the application within the 21 days statutory time period. This is not an acceptable reason for the delay.

Whether the person first became aware of the dismissal after it had taken effect

[12] The applicant became aware of the dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[13] The applicant has not otherwise sought to dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[14] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[15] There clearly is a dispute between the parties as to the merits of Mr Uren’s application and for the purposes of the extension of time application the question of merit is a neutral factor.

Fairness as between the person and other persons in a similar position

[16] This is not a relevant factor in this matter.

Conclusion

[17] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[18] I have considered the very limited information provided and in this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there were exceptional circumstances.

[19] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

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

COMMISSIONER

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