Wayne Chapman v Pilbara Mining Alliance Pty Ltd

[2014] FWC 7022

[2014] FWC 7022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Chapman
v
Pilbara Mining Alliance Pty Ltd
(U2014/9132)

COMMISSIONER WILLIAMS PERTH, 13 OCTOBER 2014

Termination of employment - extension of time.

[1] The applicant in this matter, Mr Wayne Chapman (Mr Chapman or the applicant), has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Pilbara Mining Alliance Pty Ltd (PMA or the respondent).

[2] Mr Chapman was dismissed on 15 August 2014. The application was made on 6 September 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.”

[5] Submissions have been provided on behalf of Mr Chapman and PMA regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] With respect to the reason for the delay in making the application Mr Chapman’s legal representative Mr Heathcote states the facts are as follows.

“The Applicant engaged me before he was dismissed to help him respond to the Respondent’s allegations against him.

When it became clear to him that his employment was in jeopardy, he sought my advice about his options to respond to any subsequent dismissal. I explained that he could make a section 394(1) application to the Commission and I advised him about the time limitation.

Shortly after he was dismissed on 15 August 2014, the Applicant instructed me to prepare his section 394(1) application. I prepared the application over the course of the next 2 weeks then provided a copy of the draft application for the Applicant to review.

He reviewed the application promptly and gave instructions that I should lodge it. Further, he reminded me to make sure that I lodged it on time.

I had calculated the date on which the application had to be lodged using an application called “Day Counter”. I did that calculation, as I usually do, as soon as I was aware of the date on which the Applicant had been dismissed. Day Counter indicated that the application had to be lodged by 06 September 2014. I can’t explain that result except to speculate that I made an error when I set the parameters for Day Counter’s calculation.

Regardless of Day Counter’s indicated due date, I intended to lodge the application electronically on 05 September 2014 so that there was no need for me to do this work over the weekend.

My works schedule on Friday, 05 September 2014 was such that I was out of my office from about 10:00 am until about 6:30 pm.

In the circumstances, I opted not to lodge the application at 6:30pm on 05 September 2014 because, by then, it had become apparent to me that I would have to do some work at my office on the weekend in any event.

I went to my office on the afternoon of 06 September 2014 to e-lodge the application and to do some other work. I re-dated the application and lodged it electronically. At that point, I believed that I had lodged the application in time.”

[7] PMA do not dispute these facts however submit that these reasons are not adequate to explain the delay in making the application and an extension of time should not be granted in the circumstances.

[8] I accept the facts of this matter are as Mr Heathcote states above.

[9] These facts show that shortly after Mr Chapman’s dismissal he instructed his legal representatives to prepare an unfair dismissal remedy application and that having been provided with the draft application Mr Chapman promptly reviewed it and instructed his legal representatives to lodge his application with the Commission.

[10] The sole reason for the one day delay in this instance was that Mr Chapman’s legal representative made an error when calculating when the 21 day time limit ended. This error caused Mr Chapman’s legal representative to make the application one day late whilst believing he had made the application within time.

[11] I am satisfied that the conduct of the applicant in these circumstances was appropriate and that he did make proper efforts that would otherwise have allowed his application to be made within time.

[12] I am satisfied that the error of Mr Chapman’s legal representative was the reason for all of the delay in making the application. In the circumstances this is an acceptable reason for the delay in making this application.

When the applicant first became aware of the dismissal

[13] Mr Chapman became aware of his dismissal on the same day it took effect.

Any action taken by the person to dispute the dismissal

[14] The applicant has not other than making this application sought to dispute his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[15] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[16] There is limited information regarding the merits of Mr Chapman’s application and consequently the question of merit is a neutral factor for the determination of the extension of time question.

Fairness as between the person and other persons in a similar position

[17] This is not a relevant factor in this matter.

Conclusion

[18] In this case the reason for all of the delay in making the application was representative error and in the circumstances I have found this is an acceptable reason for the delay in making the application.

[19] I am satisfied in this case the reason for delay amounts to exceptional circumstances. I will therefore exercise the discretion available to the Commission and allow a further period within which this application can be made.

[20] An order to that effect will be issued in conjunction with this decision.

[21] The matter will be referred for conciliation and the parties will be advised accordingly in due course.

COMMISSIONER

Final written submissions:

Applicant, 16 September 2014

Respondent, 2 October 2014

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<Price code A, PR556276>