Thewadros Bekele v Brotherhood of St Laurence

[2014] FWC 1028

[2014] FWC 1028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thewadros Bekele
v
Brotherhood of St Laurence
(U2013/12106)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 11 FEBRUARY 2014

Application for relief from unfair dismissal - jurisdiction - out of time - fixed term contract.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Bekele (the Applicant) alleging that he was unfairly dismissed from his employment with the Brotherhood of St. Laurence (the Respondent) on 28 June 2013.

[2] The Respondent has raised two jurisdictional objections to the application. Those objections are that:

1. the application was made outside the 21 day statutory timeframe for making an application set out at s.394(2) of the Act; and

2. consistent with s.386(2) of the Act, Mr Bekele was not dismissed but rather his employment ceased because of the expiration of his fixed term contract of employment on 30 June 2013 (28 June 2013 being the last working day before that date).

[3] As to the first mentioned of those jurisdictional objections, the Applicant submitted that the Commission should allow a further period for the making of the application on the basis that there were exceptional circumstances. These include the Applicant’s depressive illness, his attempted suicide on 11 July 2013 and his lack of knowledge until late July 2013 of the potential for him to make an unfair dismissal application.

[4] Section 394(3) of the Act sets out the grounds the Commission must take into account in considering whether or not to allow a further period for the making of an unfair dismissal application under s.394 of the Act.

[5] With regard to those grounds, it is not disputed that the Applicant was aware of his termination before it took effect (though it is disputed exactly when he knew) and that he took steps to dispute the termination. The Respondent submits that there is no prejudice to it in the Commission allowing a further period and makes no submission on the issue of fairness between the person and other persons in a similar position.

[6] Against that background, it is clear that the reason for the delay and the merits of the application are the two key grounds set out in s.394(3) of the Act requiring consideration in deciding whether or not to allow an extension of time for the making of the application.

[7] With regard to the reason for the delay, as outlined already, there are clearly some extenuating circumstances going to the Applicant’s health. On their own, they would in most cases constitute exceptional circumstances.

[8] However, as mentioned a moment ago, the Commission also needs to take into account the merits of the application. That ground, in my view, overlaps with the other jurisdictional issue raised by the Respondent, i.e. that the Applicant’s employment ceased through the effluxion of time.

[9] Before considering that issue, I note that the evidence before the Commission centred overwhelmingly on that second jurisdictional objection. More particularly I wanted to observe what I would describe as a gulf between the Applicant’s evidence and the evidence led on the Respondent’s behalf. On a number of key aspects one has to ask whether the witnesses were even at the same meeting or event. In this regard, the Applicant’s evidence was at times inconsistent with his own evidence and the documentation before the Commission. For instance, the Applicant’s evidence to the effect that the first he heard that his job would not continue beyond 30 June 2013 was 21 June 2013 contradicts his email of 15 May 2013 to Ms Kroker of the Respondent which stated “I found out yesterday from Scott my contract finished the end of June.” 1

[10] The Applicant’s submission was to the effect that as English is not his first language he did not fully grasp that his contract of employment was fixed term in nature. The Applicant’s further submission was that the linkage between DHS Victoria funding for the program contract with the Respondent and his employment led him to conclude that his employment would continue if the funding contract was renewed beyond 30 June 2013.

[11] While these submissions have some resonance at a simplistic level, the Respondent’s evidence and submissions were that it went to an appropriate degree of effort to outline to the Applicant the contract of employment (particularly the end date of the Applicant’s employment), the subsequent change of conditions and the changes flowing from the change in direction of the program funding. In this regard I prefer the evidence of Mr Stickland on behalf of the Respondent to that of the Applicant.

[12] This supports a finding that the Applicant’s employment was not terminated at the initiative of the Respondent but ended with the effluxion of time consistent with the fixed term nature of his employment. This in turn supports a finding that the merits of the application are poor.

[13] Against that background, I do not consider it appropriate to allow a further period for the application to be made. Further, I find that the Applicant’s employment was not terminated at the Respondent’s initiative and that in accordance with s.386(2) of the Act the Applicant was not dismissed.

[14] The Respondent’s jurisdictional objections are upheld and the application dismissed for want of jurisdiction. An order dismissing the application will be issued separately.

DEPUTY PRESIDENT

Appearances:

E. Hawthorne for the Applicant.

D. McLaughlin with J. Grayling for the Respondent.

Hearing details:

2014.

Melbourne:

February 6.

 1   Exhibit MC4 at Attachment EK-2

Printed by authority of the Commonwealth Government Printer

<Price code A, PR547659>