Travis Sickerdick v New Milo Mining Pty Ltd

[2014] FWC 3569

[2014] FWC 3569

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Sickerdick
v
New Milo Mining Pty Ltd
(U2014/6105)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 28 MAY 2014

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

[1] On 1 April 2014 Mr Sickerdick 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 New Milo Mining Pty Ltd (NMM).

[2] In that application, Mr Sickerdick advised that his dismissal took effect on 6 March 2014. He advised that the application was made within time.

[3] As the application may have been lodged outside of the statutory time limit the application was referred to me for consideration. On 29 April 2014 I issued directions which confirmed that the application appeared to have been lodged outside of the 21 day time limit specified in s.394 of the FW Act. These directions required NMM to lodge a completed Employer Response (Form F3) to the application by 9 May 2014. These directions required Mr Sickerdick to provide to the FWC and to NMM by 15 May 2014, an outline of his position with respect to the extension of time issue, a witness statement detailing the evidence he sought to give with respect to the extension of time issue and a copy of any document upon which he relied in this respect. These directions informed the parties that the extension of time issue would be considered through a telephone conference on 22 May 2014.

[4] No Employer’s Response (Form F3) to the application has been received.

[5] Mr Sickerdick provided material to the Fair Work Commission (FWC) consistent with my directions.

[6] The extension of time issue was considered through a telephone conference on 22 May 2014. A sound file record of this conference was kept. Mr Sickerdick attended this conference. NMM did not participate in this conference. At this conference Mr Sickerdick advised that he understood that NMM was now in administration and had sought to discuss the issue with the Administrator.

[7] Mr Sickerdick confirmed the information provided to me. I have considered the extension of time issue on the material before me.

[8] 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.”

[9] 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 5 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 Sickerdick’s circumstances can be regarded as exceptional for the purposes of this subsection.

[10] The information Mr Sickerdick has provided advises that he was informed that he was redundant by telephone on 6 March 2014 but, when he had not received formal written advice to this effect by 10 March 2014 Mr Sickerdick sought clarification of his employment status by e-mail on 11 March 2014. Later that day Mr Sickerdick received formal advice confirming his redundancy. Mr Sickerdick’s evidence was that he had not received any redundancy payments and remained hopeful that he would be reinstated. He forwarded a further e-mail on 17 March 2014, in which he challenged the redundancy decision. On 19 March 2014 NMM responded on the basis that whilst it was prepared to have discussions with Mr Sickerdick, there were very limited options for anyone involved in, what was described as “this project”. Mr Sickerdick’s evidence was that he became aware of the potential capacity to lodge this application on the weekend of 22 March 2014 and that over the following two working days he researched that capacity and prepared this application. He explains the additional delay in the lodgement of the application on the basis that he experienced confusing difficulties and had to buy a printer in order to finalise the application which he sent by mail on 27 March 2014. In summary form, Mr Sickerdick confirmed that the primary reason for the delay was his lack of awareness of the capacity to make an application and, to a more limited extent, the difficulties he had in lodging the application. I am not satisfied that Mr Sickerdick’s lack of awareness of the legislation represents an acceptable reason for the delay and I am unable to conclude that the difficulties he had in lodging the application are able to be regarded as such an acceptable reason. Neither basis for the delay could be described as an exceptional circumstance.

[11] Mr Sickerdick agrees that he was made aware of the termination of employment decision on 6 March 2014 which I have taken as the date that termination of employment took effect.

[12] In terms of actions taken by Mr Sickerdick to dispute his dismissal, I have taken into account his request for clarification of his employment standing made by e-mail on 10 or 11 March 2014 and the NMM response of 11 March 2014, confirming his redundancy with effect from 6 March 2014. I have also taken into account Mr Sickerdick’s subsequent request for a discussion and the NMM response of 19 March 2014 which confirmed the NMM position. Mr Sickerdick’s actions in this respect favour an extension of time.

[13] As NMM is in administration I have concluded that the granting of an extension of time would prejudice the respondent in this matter. However, I do not consider that this issue is, of itself, determinative of the extension of time issue.

[14] In terms of the merits of the application, Mr Sickerdick’s advice is that there were no discussions with him about the possibility of redundancy. I think it likely that Mr Sickerdick’s employment was covered by the Mining Industry Award 2010 and that the absence of any consultation about the possibility of redundancy was inconsistent with the consultation provisions of that Award. Additionally, whilst I have noted Mr Sickerdick’s concern that he should not have been selected for redundancy, information to support this assertion is simply not available to me. Finally, in terms of the merits of the application, I note the degree of difficulty commonly associated with pursuing an unfair dismissal application against any employer which is under administration.

[15] Considerations of fairness relative to persons in similar circumstances to Mr Sickerdick indicate that an extension of time has been granted in certain instances but not in others.

Conclusion

[16] In this case I have decided, on balance that Mr Sickerdick’s circumstances do not support an extension of time. Whilst other factors mitigate in favour of an extension of time, I am not satisfied that the reasons for the delay can 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 (PR551144) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

T Sickerdick on his own behalf

Hearing (conference) details:

2014.

Adelaide:

May 22.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR551143>