Timothy Allen v Marion Hand Car Wash Pty Ltd T/A Magic Hand Car Wash Marion

[2014] FWC 3380

[2014] FWC 3380

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Allen
v
Marion Hand Car Wash Pty Ltd T/A Magic Hand Car Wash Marion
(U2014/5384)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 MAY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 21 May 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 11 March 2014 Mr Allen lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with The trustee for Marion Hand Car Wash Unit Trust T/A Magic Hand Carwash.

[3] In that application, Mr Allen advised that his dismissal took effect on 17 January 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“I was told I would be paid out for remainder of that week then receive 4 weeks pay & annual leave after that.

I didn’t have another job to go to and with a small family to support & a house I needed the money and if I complained I was afraid they wouldnt pay it as they payed it weekly and I still havent received a Termination letter explaining why I was instantly Terminated.”  1 (sic)

[4] The application was referred to me for consideration on 22 April 2014. On 29 April 2014 I issued directions in which I advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. These directions confirmed that the extension of time issue would be considered through a telephone conference on 21 May 2014. Mr Allen was required to provide a witness statement and a copy of any document relied upon, by 14 May 2014.

[5] The Employer’s Response (Form F3) to the application identified the employer as Marion Hand Car Wash Pty Ltd T/A Magic Hand Car Wash Marion (Magic Hand). The Form F3 confirmed that Magic Hand objected to an extension of time and objected to the application proceeding on the basis that Mr Allen had not been dismissed by the employer.

[6] I have amended the application pursuant to s.586 of the FW Act so as to specify the respondent as Marion Hand Car Wash Pty Ltd T/A Magic Hand Car Wash Marion.

[7] Mr Allen provided material to the Fair Work Commission (FWC) and to Magic Hand. I have taken this material into account in reaching my conclusion in this matter

[8] The extension of time issue was considered through a telephone conference on 21 May 2014. A sound file record of this conference was kept. Mr Allen participated in this conference. Magic Hand was represented by Ms Howells-Schramm of the Victorian Employer’s Chamber of Commerce and Industry.

[9] Mr Allen’s position was that the application was late because he was unaware of a time period for the making of an application of this nature. Further, that his wife had a miscarriage on 30 December 2013 which impacted on his approach to the matter. Mr Allen’s statement detailed his position that the termination of his employment was at the initiative of the employer. He also disputed the Magic Hand’s assertions about his behaviours whilst he was employed.

[10] I have considered the extension of time issue on the material before me.

[11] The information provided to the parties included a copy of s.394 and the factors I am required to take into account in considering this matter.

[12] Section 394 states:

“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.”

[13] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 32 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Allen’s circumstances can be regarded as exceptional for the purposes of this subsection.

[14] The information Mr Allen has provided does not adequately explain why the application could not have been lodged within time. His lack of awareness of the time limit is not an acceptable basis for the delay. It may well be the case that Mr Allen was upset and emotional because of his family circumstances but I am not satisfied that he has established that this prevented him from pursuing the application. I am not satisfied that Mr Allen has established to me a satisfactory reason for the delay.

[15] On the information provided by Mr Allen, I am satisfied that he was made aware of the termination of employment decision on 17 January 2014 which I have taken as the date that termination of employment took effect.

[16] It is clear that Mr Allen took issue with Magic Hand about payments due to him and a letter of recommendation after the termination of his employment. I am unable to discern that Mr Allen took further action in this respect.

[17] The granting of an extension of time would prejudice the respondent in this matter.

[18] In terms of the merits of the application, the material before me does not categorically establish the Magic Hand position that the termination of Mr Allen’s employment was by mutual agreement. It seems to me that, while Mr Allen foreshadowed his resignation at some future time he was dismissed on 17 January 2014. The material before me does not enable a conclusion about the actual merits of that dismissal.

[19] Accordingly, I have concluded that the limited information before relating to the merits of the application favours neither an extension of time nor dismissal of the application but should be regarded as a neutral factor.

[20] Considerations of fairness relative to persons in similar circumstances to Mr Allen do not support an extension of time.

Conclusion

[21] For the reasons I have set out above, Mr Allen’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR550865) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (By telephone):

T Allen on his own behalf.

N Howells-Schramm representing the Respondent.

Hearing (Conference) Details:

2014.

Adelaide:

May 21.

 1   Form F2, para 1.4

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<Price code A, PR550864>