Thomas Henson v Transfield Services (Australia) Pty Ltd

[2012] FWA 10239

[2012] FWA 10239

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Henson
v
Transfield Services (Australia) Pty Ltd
(U2012/12316)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 DECEMBER 2012

Termination of employment - extension of time.

[1] On 14 August 2012 Mr Henson lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment by Transfield Services (Australia) Pty Ltd (Transfield). In his application, Mr Henson asserted that the termination of his employment took effect from the end of July 2012. He attached a copy of the advice of the termination of his employment dated 19 June 2012.

[2] Transfield objected to the matter proceeding and sought that the application be dismissed on the basis that no extension of time for lodgement of the application should be granted.

[3] The extension of time issue was the subject of a hearing in Adelaide on 4 December 2012. At this hearing, Mr Henson appeared for himself and Mr Gosling, the Transfield Executive Manager, Industrial Relations appeared for the respondent. Mr Henson and Mr Handy, a Transfield Human Resources Team Leader both gave evidence.

[4] Section 394(2) requires that an application for an unfair dismissal remedy be made within 14 days after the dismissal took effect or within such further period as Fair Work Australia (FWA) may allow. Section 394(3) states:

“394 Application for unfair dismissal remedy

....

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[5] The background to Mr Henson’s application is that he was employed by Transfield as a Sheet Metal Worker from July 2004. He worked in the Cooper Basin on work which Transfield undertakes for a major client. From June 2011 to October 2011 Mr Henson was in jail. Transfield treated this time as "leave without pay". On his release from jail Mr Henson sought to return to work in the Cooper Basin. The police clearance certificate and standard medical checks, including drug test screening required by Transfield for him to return to this work, were not completed. The parties dispute the extent to which Mr Henson’s actions or inaction was the reason for these preliminary steps not being taken.

[6] On 19 June 2012 Transfield forwarded a letter of termination to Mr Henson’s nominated postal address and deposited into his nominated bank account, all outstanding entitlements.

[7] Mr Henson asserts that the letter of termination was sent to a post box he no longer used and the payments were made into a bank account that he no longer used. He acknowledges that he has accessed the monies paid to him but has not advised of the date on which he did so. His evidence was that on 28 June 2012 he first became aware of the termination of employment letter. He telephoned Transfield and asserts that he was told that his situation would be investigated. Mr Henson’s evidence was that when he had not received any response after 2 weeks he again telephoned Transfield and Mr Handy confirmed to him the termination of his employment. Mr Henson advised that he then sought advice from two lawyers before being referred to an entity he referred to as “Legal Aid” which process took some weeks but that as soon as he was advised to apply for an unfair dismissal remedy he did so. Mr Henson advised that he was unaware of the statutory time limit for the commencement of this application until he received advice from Legal Aid.

[8] I note that Transfield dispute significant components of Mr Henson’s evidence but, for the purposes of this extension of time issue, it is not necessary that I deal in detail with those conflicts.

[9] I have considered the reason for the delay in the context of the evidence before me. On Mr Henson’s own advice he was unaware of the termination of his employment until 28 June 2012 because he had not renewed the post office box which he had nominated to Transfield as his contact address. He confirmed to me that the termination of employment letter made the termination of his employment absolutely clear. His application was not made for a further 33 days after he received that letter. During that time Mr Henson made an initial enquiry of Transfield and then waited for two weeks before taking up the matter again. His advice about the date and nature of his contacts with lawyers and then Legal Aid is, at best, imprecise. Mr Henson was previously a member of a union but chose not to contact that union relative to the termination of his employment.

[10] The Transfield position is that the termination of employment letter was sent to the address provided by Mr Henson and that no request for a change to this address had been made. Further, that Mr Henson had received the payslips sent to the same address. Transfield asserted that the final payment made to Mr Henson was forwarded to the nominated bank account and no change to those banking arrangements had been requested by Mr Henson. Transfield dispute Mr Henson’s version of the discussions he had with Transfield personnel after the termination of his employment.

[11] I am inclined to prefer the Transfield position such that Mr Henson cannot now rely on the late receipt of the termination of employment letter when he took no steps to advise Transfield that the address he had provided was not current. Notwithstanding this, I have considered whether there was an acceptable reason for the delay in the lodgement of the application on the basis that there is no dispute that Mr Henson received advice of the termination of his employment on 28 June 2012 and that date represents the relevant date for the purposes of the time limit specified in s.394(2).

[12] I do not consider that Mr Henson’s actions after he received the termination of employment advice represent acceptable reason for a delay of this magnitude. Mr Henson has not demonstrated that he acted with any degree of urgency in disputing the termination of his employment. To the extent that he relies on his ignorance of the statutory time limit, this cannot be either an acceptable reason for the delay or an exceptional circumstance.

[13] I have concluded that the delay is of a magnitude that would prejudice Transfield.

[14] In terms of the merits of Mr Henson’s application I have not heard evidence which enables me to reach a definitive conclusion. Consequently, I have adopted the position that the evidence does not permit a conclusion that the application is without merit such that this factor mitigates in favour of refusing the extension of time. That conclusion should not be misinterpreted as upholding Mr Henson’s arguments.

[15] Finally, I have considered issues of fairness between Mr Henson’s situation and that of other persons who have made s.394 applications. Those other applications would not generally be accepted.

[16] I am not satisfied that exceptional circumstances exist so as to warrant the granting of an extension of time in this situation. The delay is in large measure a result of Mr Henson’s own inaction. The application for an extension of time is refused and the application is dismissed. An Order [PR532011] giving effect to this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

T Henson on his own behalf.

G Gosling for Transfield Services (Australia) Pty Ltd.

Hearing details:

2012.

Adelaide:

December 4,

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<Price code A, PR532010>