Troy Hunt v Omega Security Services Pty Ltd

[2014] FWC 7823

[2014] FWC 7823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Hunt
v
Omega Security Services Pty Ltd
(U2014/12902)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 NOVEMBER 2014

Termination of employment - extension of time.

[1] On 30 September 2014 Mr Troy Hunt (the Applicant) lodged an Unfair Dismissal Application (the Application). The Applicant asserts that he was unfairly dismissed from his employment with Omega Security Services Pty Ltd (the Respondent). The Applicant states that his dismissal took effect on 13 August 2014. The Application was therefore lodged outside the 21 days allowed by s.394(2)(a) of the Fair Work Act 2009 (the FW Act).

[2] In his Application in response to Question 1.4 and the reasons that the Fair Work Commission (FWC) should take into consideration in determining whether to accept the application out of time the Applicant stated:

“I was dismissed on the 13/8/14 and was told that my position was no longer required. 2 weeks later I found out that they hired someone else to do my job and a week later made him full time. I had since been trying to ask head office about this with no reply. I emailed FWO about this to find out what I can do which took awhile for them to reply. Then they told me to go to the FWC website and download the forms but I was unable to do this (tried on multiple computers) as it keeps saying page not found, so I sent you emails to see if you can send me the forms instead.

Hiring someone else on cheaper rates regardless seems unfair to me.”

[3] On 2 October 2014, I wrote to the Applicant requesting that he address the considerations I must take into account in determining whether exceptional circumstances exist to allow an extension of time.

[4] On 3 October 2014, the Applicant provided submissions in response to my letter. The Applicant submitted as follows:

“The reason for the delay was that I originally thought it was a mistake and tried to communicate with work to find out what is going on but they were a bit vague with giving me answers. When their intention became clear to me I started to look for other employment opportunities as in their words “The position is no longer required”. I then found out 2 weeks later that they employed someone else to do my job on a full time basis. After that I tried to contact work about this matter but had trouble getting in touch with them. Eventually received an email from Omega saying that they will look in to it, and never got back to me. I then made some calls and sent emails to find out who I can talk to about this decision that they made which led me to FWC and why it lapped the 21 day period.

I wasn’t aware of the unfair dismissal until after my holidays which were around the same time and they had employed someone else in my position.

I sent emails and tried calling to solve the dispute but had no luck and eventually received an email from omega saying that they will escalate my concern but that was the last contact that I had with them.

I had been asking about some discrepancies in the contract that was signed for the site that I work on and for the last two years I had been enquiring about them as they haven’t been paying the entitlements (I recon this is the reason that I got dismissed) and they still haven’t paid the entitlements.

I’ve had NO verbal/written warnings of any kind. I get along with everyone on site including the residents, staff, managers and clients. From memory I don’t think I had any sick days in the past two years.

Other team members are getting stuffed around with their contracts but unsure whether to enquire about it or they might get the same treatment as me.”

[5] On 7 October 2014, I wrote to the Respondent requesting that they provide submissions in reply to the Applicant’s submissions. The Respondent was requested to respond by 21 October 2014. To date I have received no response from the Respondent. I will therefore determine whether exceptional circumstances exist on the basis of the material provided by the Applicant.

Considerations

[6] The Applicant’s submissions appear to indicate that the reasons for the delay were: (a) that he was trying to resolve the issue directly with the Respondent; (b) the Respondent had allegedly employed someone else to work in his position on a full time basis; (c) he contacted the Fair Work Ombudsman (FWO) but they took awhile to respond to him; and (d) he had difficulty downloading the relevant forms to lodge an application with the FWC.

[7] Whilst I accept that the Applicant may have been attempting to resolve the matter directly with the Respondent I do not consider this to be a reason, in the circumstances here, that weighs in favour of the Applicant as there is nothing exceptional about such a circumstance.

[8] In relation to the Applicant’s contact with the FWO and his attempts to download the relevant forms from the FWC website I note that the Applicant has provided no dates in relation to when he contacted the FWO nor when he attempted to download the relevant forms from the FWC website. In any event I do not consider this element of my considerations weighs in favour of a finding of an exceptional circumstance.

[9] In his Application the Applicant states that he was notified of the termination of his employment on 13 August 2014. In his further submissions the Applicant states that he was not made aware of his termination until “after my holidays which were around the same time and they [the Respondent] had employed someone else in my position.” However, the Applicant does not provide any dates as to when his holidays were. Further in his Application at question 1.4 the Applicant states that he was dismissed on 13 August 2014 and “was told that my position was no longer required. 2 weeks later I found out that they had hired someone else to do my job”. I accept that the Applicant was notified of the termination of his employment on 13 August 2014. This does not weigh in favour of a finding of there being exceptional circumstances.

[10] In regards to the action taken to dispute the dismissal the Applicant states that he tried to resolve the issue directly with the Respondent by email and telephone. The Applicant asserts that the Respondent wrote to him by email advising that they would escalate his concerns. I accept that the Applicant genuinely endeavoured to raise his concerns regarding the termination of his employment with the Respondent. The Applicant also states that he contacted the FWO and the FWC, the Applicant has not provided any dates in relation to when he contacted either the FWO or the FWC. I do not consider that the actions by the Applicant support a finding of there being an exceptional circumstance.

[11] I also do not consider the Respondent will suffer prejudice if the Application is allowed.

[12] There is limited information regarding the merits of the Applicant’s Application and without detailed submissions from the parties regarding the merit of the Application I have given neutral weight to a finding of an exceptional circumstance.

[13] I do not consider that it would be fair between the Applicant and other persons in a similar position if the Application were to be allowed.

[14] I find that exceptional circumstances do not exist and I will not allow an extension of the time allowed for the Application to be lodged. The Application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 3 October 2014

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