Warren Neale v Fiona Louise Macdonald-Taylor and Kain Damon Selby-Fullgrabe T/A Town and Country Asset Services

[2014] FWC 2118

[2014] FWC 2118

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren Neale
v
Fiona Louise Macdonald-Taylor and Kain Damon Selby-Fullgrabe T/A Town and Country Asset Services
(U2014/4397)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 31 MARCH 2014

Application for relief from unfair dismissal - extension of time - no acceptable reason for delay - application not able to be considered on the merits - extension of time refused.

[1] These reasons reflect advice provided at the conclusion of a determinative conference convened on 28 March 2014 to consider a request for an extension of time for the lodgement of an unfair dismissal application made by Mr Neale. Having heard Mr Neale and the respondent, represented by Mr Selby-Fullgrabe, I advised the parties that the extension of time request was refused and, accordingly, the application was dismissed. My reasons for reaching that conclusion are summarised below.

[2] Mr Neale’s application was lodged on 6 February 2014. In that application he advised that he was employed as a supervisor from 6 May 2013. He further advised that he was informed of his dismissal by text message on 13 December 2013 and that his dismissal took effect from that date. Whilst no employer response to the application was lodged with the Fair Work Commission (FWC), there was no dispute about these relevant dates.

[3] Accordingly, Mr Neale's application was lodged some 32 days outside of the 21 day time limit specified in s.394(2) of the Fair Work Act 2009 (the FW Act). In directions issued on 17 March 2014, I advised the parties that I would consider any extension of time on the basis of the provisions of s.394(3). The parties were provided with a copy of this section of the FW Act which states:

“394 Application for unfair dismissal remedy

....

(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.”

[4] I have considered each of the factors set out in this section.

Mr Neale explained that he was not aware that there was a time limit for the lodgement of his application until sometime after the 21 day time limit expired when he researched this issue. I do not consider that Mr Neale's absence of knowledge about the 21 day time limit can be taken to be an acceptable reason upon which I could conclude that there were exceptional circumstances so as to extend the time for lodgement of the application.

[5] Mr Neale acknowledges that he was aware of the termination of his employment on the day on which it took effect. This factor does not support an extension of time.

[6] Mr Neale advised that he endeavoured to contact the employer to dispute his dismissal but was unable to do so. Mr Selby-Fullgrabe disputes Mr Neale's version of events in this respect. I have drawn no conclusion about the actions taken by Mr Neale to dispute the termination of his employment.

[7] I have concluded that the granting of an extension of time would prejudice the respondent in this matter.

[8] In terms of the merits of the application, there is no dispute that the respondent is, and was, at the time of the termination of Mr Neale's employment, a small business for the purposes of the FW Act. Accordingly, Mr Neale had not completed the requisite minimum employment period for the purposes of s.383. This means that he was not a person protected from unfair dismissal consistent with s 382. Accordingly, there is no basis for a grant of an extension of time in these circumstances.

[9] This conclusion is consistent with the general approach followed by the FWC.

[10] For these reasons, Mr Neale's request for an extension of time is refused and his unfair dismissal application is dismissed. An Order (PR549143) to this effect will be issued.

[11] I note that, in the course of the conference in this matter Mr Neale confirmed that he was fundamentally seeking payment of his accrued annual leave and payment of one week’s pay in lieu of notice. Because of the degree of acrimony between the parties I have set out the arrangement reached between them. Mr Selby-Fullgrabe confirmed that he was prepared to pay these amounts but required that Mr Neale return the respondent’s property consisting of a motor vehicle, mobile phone, ipad, assorted tools and some invoices. The parties have agreed that half of the amounts which Mr Selby-Fullgrabe concedes are payable to Mr Neale will be paid by funds transfer by close of business Friday 4 April 2014. Mr Neale has agreed that he will return the respondent’s property in full on 7 April 2014. Mr Selby-Fullgrabe has undertaken that the remaining half of the payments due to Mr Neale will be paid, by funds transfer on 7 or 8 April 2014. I confirm my advice to the parties that the adoption of such a commonsense approach in this respect should avoid the need for any further litigation.

SENIOR DEPUTY PRESIDENT

Appearances:

W Neale on his own behalf.

K Selby-Fullgrabe representing the respondent.

Hearing details:

2014.

Adelaide:

March 28.

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<Price code A, PR549139>