Sveto Kezich v ESS Eastern Guruma Pty Ltd

[2014] FWC 4826

[2014] FWC 4826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sveto Kezich
v
ESS Eastern Guruma Pty Ltd
(C2014/4371)

COMMISSIONER WILLIAMS PERTH, 22 JULY 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Sveto Kezich (Mr Kezich or the applicant) under section 365 of the Fair Work Act 2009 (the Act). The respondent is ESS Eastern Guruma Pty Ltd (ESS or the respondent).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] Mr Kezich’s application states that he was informed on 30 April 2014 that his employment had ceased in September 2011. His application was made on 7 May 2014. Consequently the application was made after the 21 day time limit had passed.

[4] Both parties have provided written submissions and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

Background

[5] The respondent is part of the Compass Group which is made up of a number of different employing entities.

[6] The applicant had been employed with three other employing entities of the Compass Group for varying periods between 2005 and 2008.

[7] As the applicant explained the location of his employment changed as the respective Compass Group employing entity won or lost contracts.

[8] The applicant was employed from 31 July 2008 by the respondent as a Utility Attendant at the Rio Tinto Brockman 4 Construction Project Village.

[9] In September 2010 whilst the applicant was at home on rest and recreation leave he suffered a heart attack. Consequently the applicant was unable to work. The applicant had a heart transplant operation in July 2012. The applicant says he was fit to work from around early 2013.

[10] In March 2013 the applicant approached the respondent looking for work. He underwent a number of what would normally be referred to as pre-employment steps including a medical examination.

[11] The applicant was advised that there were approximately 150 other people the respondent was in the process of redeploying and that it would be a number of months before there was any possibility of him being allocated any work.

[12] Following a number of enquires about resuming work, on 30 April 2014 he says he learnt from an email sent to him by the respondent that his employment had ended when the respondent finished work at the Brockman 4 site in March 2011.

[13] The applicant in effect says that he was not aware that his employment had ended in 2011 until he was advised this was the case on 30 April 2014.

The reason for the delay

The applicant’s submission

[14] The applicant made arrangements with the respondent to be paid for a period after his absence from work began, using his leave entitlements. The applicant says these payments stopped on 3 April 2011.

[15] He says he was then told by the respondent’s Perth office that his entitlements had run out.

[16] Shortly thereafter he learned from a colleague that the Brockman 4 site had closed. Prior to this because of his absence and illness he was not aware work at the site had finished.

[17] He requested Centrelink communicate with the respondent on his behalf and this resulted in the respondent making a further payment to him in October 2011.

[18] The applicant received a payslip for this money which he says included amounts for annual leave and long service leave “...on Termination”. 1

[19] In the applicant’s words:

“I understood this to be the termination of the Brockman 4 site but not from ESS as a company employee. There was no mention of redundancy on the payslip.”

[20] The applicant says the delay in making this application relates mostly to poor communication.

[21] He says he did not receive any consultation or formal notification of redundancy taking place. This he says in turn gave him a false attachment to the company and his awareness that his dismissal had occurred only came about on 30 April 2014 when the company emailed him that he had been dismissed back in 2011.

The respondent’s submission

[22] The respondent says that the applicant’s employment at the Brockman 4 site was always to be limited to the life of the respondent’s contract with its client for that project.

[23] The respondent says that the contract between it and its client resulted in their work on the Brockman 4 site ending in early 2011.

[24] The respondent says that the applicant would have understood consistent with all his previous engagements with the Compass Group’s other employing entities that when the contract at Brockman 4 came to an end further employment with the respondent or any other employer within the Compass Group will depend on whether or not other jobs were available and if jobs were available it would require a new contract of employment to be agreed between the applicant and the particular Compass Group employer.

[25] The respondent submits it terminated the applicant’s employment with effect from 31 March 2011 because the contract to provide catering and related services at the Brockman 4 Construction Project Village had come to an end. Similar action was taken in relation to all of the other employees at the site, who were terminated about the same time.

[26] This fact is confirmed by the “Termination advice” document completed at the time which identifies the applicant and the day of his termination being 30 March 2011 the reason for the termination being “Contract end”. This document was signed and dated by the respondent’s Manager on 23 March 2011.

[27] The respondent says various termination payments were then paid to the applicant on 3 April 2011.

[28] The applicant says a subsequent payroll audit revealed that accrued long service leave and annual leave had not been paid to the applicant at the time of termination and these outstanding amounts were then paid to him on 2 October 2011. 2

[29] The respondent submits that the specific inclusion of statements on the final payslip that the amounts paid were for “Annual leave on Termination” and “LSL on Termination” made it plain that the respondent had treated the applicant’s employment as having come to an end.

[30] The respondent notes that from that time onwards there was no contact from the applicant to the respondent until he approached the Compass Group recruitment team in its Perth office in March 2013 seeking employment.

Consideration

[31] I will first consider the facts in this matter based on the materials provided by the parties.

[32] It is quite clear on the information provided that as a matter of fact the applicant was dismissed by the respondent in March 2011. This is evident from the Termination Advice provided by the respondent. 3 The applicant accepts this is what occurred.

[33] The dismissal occurring at this time is consistent with the applicant’s statement that he became aware sometime after April 2011 that the Brockman 4 site had closed and is consistent with the fact that the respondent’s contract with its client to provide services on this site had come to an end at this point.

[34] The applicant says after he commenced his absence from work he requested that his leave and other entitlements be paid to him fortnightly. Around April 2011 these payments stopped and he enquired about this and was advised by the respondent his entitlements had run out.

[35] I find that as a result of further enquiries made on his behalf he received one further payslip six months later in October 2011. 4 That payslip dated 30 September 2011 identifies the payments, amounting to a little under $10,000, as being for “Annual leave on Termination - Entitled Hours” and “LSL on Termination”.

[36] The applicant says that he understood this payslip and payments to “...be the termination of the Brockman 4 site but not from ESS as a company employee”.

[37] The applicant with some justification complains that the respondent should more formally have notified him of his dismissal.

[38] The fact that the applicant may have misunderstood what the information on the payslip meant does not change the fact that it did communicate to him that he had been terminated by his employer. Accepting that this was the first time this had been communicated to him I find that the dismissal of the applicant did not take effect until October 2011.

[39] The reason for the delay then in making this application is that the applicant had not appreciated that his employment had ended in 2011 until he received the respondent’s email sent to him in April 2014.

[40] In some circumstances such a mistaken belief by an applicant might be an acceptable reason for a short delay in making an application. The facts here however are that the respondent had provided the applicant with a document which stated he was being paid out annual leave and long service leave on termination. From this point, October 2011 onwards the applicant did not make any contact with the respondent until March 2013 simply assuming his employment was ongoing for these seventeen months. In these circumstances the applicant’s misunderstanding of his situation could not reasonably be said to be an acceptable reason for all of the lengthy delay in making this application.

Any action taken by the person to dispute the dismissal

[41] There is no evidence that the applicant took any action to dispute his dismissal other than the making of this application.

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

[42] There was a lengthy delay in this matter. Given the nature of the respondent’s business I accept that there will have been a movement of staff and some relevant persons may no longer work for the respondent and inevitably there will be some real prejudice to the employer should an extension of time in this instance be allowed.

The merits of the application

[43] The application filed is based on concerns the applicant has about the respondent’s actions in 2013 in 2014 which is a number of years after the date of his dismissal. Consequently there is no merit in this application and proceeding further would be unsuccessful.

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

[44] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[45] 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.

[46] I have considered the information provided by the applicant and the respondent. In my view there is not an acceptable reason for the full delay in this case, the applicant has not otherwise contested his dismissal, given the length of delay there would inevitably be some prejudice to the respondent should an extension of time be allowed, there is no merit in the application and so considering these factors I am not satisfied that this case involves exceptional circumstances.

[47] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

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

COMMISSIONER

Final written submissions:

Applicant, 30 May 2014 and 4 July 2014.

Respondent, 17 June 2014.

 1   Payslip payment date 30 September 2011, attachment 3 to applicant’s submissions dated 30 May 2014.

 2   Ibid.

 3   Attachment A to the respondent’s submissions dated 17 June 2014.

 4   Payslip payment date 30 September 2011, attachment 3 to applicant’s submissions dated 30 May 2014.

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<Price code C, PR553280>