Tom Karup v Western Cold Storage Pty Ltd

[2013] FWC 1778

[2013] FWC 1778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tom Karup
v
Western Cold Storage Pty Ltd
(U2013/5731)

DEPUTY PRESIDENT MCCARTHY PERTH, 25 MARCH 2013

Application lodged out of time. Whether exceptional circumstances. Application dismissed.

[1] This matter concerns an Application lodged by Mr Tom Karup (the Applicant) seeking a remedy for unfair dismissal. The application was lodged on 15th January 2013. The dismissal is stated in the application as having taken effect on 23 November 2012. The Applicant had been employed by Western Cold Storage Pty Ltd (the Respondent).

[2] The Respondent lodged an objection on 19 February 2013 stating that they application should have been lodged by 7 December 2012, within 14 days after the date the dismissal took effect, within the allowable time as required by s. 394(2) of the Fair Work Act 2009 (FW Act). The Respondent says the application was lodged 39 days out of time and that therefore the matter should be dismissed.

[3] On 13 March 2013 I wrote to Mr Karup requesting that he provide me with an explanation as to why the application was lodged out of time and why I should allow the application to proceed.

[4] On 15 March 2013 the Applicant responded to the effect that on the day of his dismissal he contacted a union representative and gave him an account of his dismissal. He claims that he had indication from that representative that an application would be lodged.

[5] The Applicant states he was not aware until 14 January 2013 that an application had not been lodged and as soon as he was aware he lodged the application with the Fair Work Commission the next day. The Applicant states he was unaware that there was a 14 day timeframe to lodge an application of this nature.

Were there exceptional circumstances?

[6] The reason for the delay as described by the Applicant clearly was one where he asserts that there was representative error. There is no explanation as to any actions that the Applicant took after the initial discussion he asserts he had with his union representative on the day of his dismissal. The Applicant appears to have taken no action whatsoever from that date (23 November 2012) until 14 January 2013. Notwithstanding that the period between November and December generally involved a holiday period there is nothing that the Applicant has provided that discloses anything in either written form, verbal form, telephone contact or any actions whatsoever that he initiated to ensure that his union representative undertook to lodge an Application on his behalf. Even if the union representative did in fact make that undertaking, there is nevertheless an obligation, in my view, for the Applicant to make some endeavours to ensure that the undertaking was fulfilled.

[7] The reason for the delay from explanations the Applicant has provided therefore seems to be solely because of asserted representative error.

[8] The Applicant first became aware of the dismissal on the day it took effect. There is no contention that the delay was related to any lack of knowledge on the part of the Applicant as to when that dismissal did take effect.

[9] The action taken by the Applicant from the documentation and explanations he lodged involved a discussion with his union representative. The only other action explained in his documentation of 15 of March 2013 followed him becoming aware on 14 January 2013 that the application had not been lodged.

[10] It would appear that there will be some prejudice to the employer if late lodgment of the application is allowed, although the extent of that prejudice in the absence of greater explanation by the Respondent is difficult to ascertain. I do not place much weight on this element of my considerations.

[11] The Applicant did not address the merits of the application in his explanation other than to assert that he had been underpaid and had been bullied. The grounds in the application however appear to indicate that the termination related to his conduct in driving a forklift and other conduct he was involved in.

[12] The Applicant’s description of the incident that appears to have caused the termination occurred on 22 November 2012 and involved an altercation with one of the supervisors. The Applicant said that he was approached in an aggressive manner. The Applicant says that he then “showed his supervisor his finger” and then said “That is the respect I have for you.”‘ His supervisor then dismissed him. The next day on the 23 November 2012 the Applicant attended work and was advised in a meeting that he had been dismissed.

[13] On the Applicant’s own version of events the merits of the application do not appear to me to be very strong.

[14] Fairness between the Applicant and other persons in a similar position does not weigh in favour of the Applicant as other persons would be expected in such circumstances to lodge within the time allowed or follow up within a reasonable period of time on any undertakings by anybody representing them that lodgement had been made.

[15] Even without hearing any detailed submissions from the Respondent I do not consider that there are exceptional circumstances in this matter such that time should be extended. The application is therefore dismissed

DEPUTY PRESIDENT

Written submissions:

Applicant: 15 March 2013

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