Wayne Schumacher v Cross Verwijmeren Pty Ltd

[2014] FWC 9154

[2014] FWC 9154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Schumacher
v
Cross Verwijmeren Pty Ltd
(U2014/13575)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 DECEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Wayne Schumacher alleged that the termination of his employment by Cross Verwijmeren Pty Ltd was unfair.

[2] Mr Schumacher’s employment ended on 17 June 2014 and the application for an unfair dismissal remedy was not made until 3 November 2014. The application was therefore not made within 21 days of the date of the dismissal.

[3] Mr Schumacher was provided with information about the criteria used by the Commission in deciding whether to extend time and invited to provide a statement supporting his application for an extension of time. He was also advised to supply any documents he would rely on. Having received Mr Schumacher’s response, I determined to hold a hearing/conference to determine the application.

[4] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria:

(a) the reason for the delay;

[5] Mr Schumacher gave evidence that he spoke to the Fair Work Ombudsman prior to his dismissal and was advised to lodge an unfair dismissal application at the same time. He also reported what he said was unsafe work practices to WorkSafe. He contacted the Bunbury Community Legal Centre in August who referred him back to the Fair Work Ombudsman. He then sought advice from the Employment Law Centre. By this time, the time for lodging his application had passed. Mr Schumacher gave evidence that he was affected negatively by a chemical that he had used at work at the time of his dismissal. He said he did not understand the steps he needed to take to lodge an unfair dismissal.

[6] Mr Schumacher did not produce any medical evidence to support this submission despite being advised by letter on 17 November 2014 that if he relied upon a medical condition he needed to supply a medical certificate or report. He said he had seen a doctor who confirmed that the exposure to the chemical was not good for him. Mr Schumacher did not obtain a report or a certificate from the doctor about how the effect of the chemical prevented him from lodging his claim.

[7] It was Mr Schumacher’s evidence that because he had been affected by the chemicals he was unable to make a decision. He didn’t know what to do and didn’t have anyone to help him.

[8] Mr Schumacher was made aware of his right to make an unfair dismissal claim by the Fair Work Ombudsman when he contacted the Fair Work Ombudsman the day before the dismissal. Even if Mr Schumacher was affected by the chemicals he used, this did not prevent him making a complaint to WorkSafe and seeking advice from a variety of sources. I do not accept that he was incapable of making a decision to lodge this claim for five months. This weighs against a finding that there were exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[9] Mr Schumacher was aware of the dismissal when it occurred and he had the full 21 days to lodge his application. This weighs against a finding that there were exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[10] Mr Schumacher contacted the Fair Work Ombudsman and sought advice from some community legal centres. He did not provide his employer with a medical certificate or report nor is his employer aware of any workers’ compensation claim lodged by Mr Schumacher. I consider this criterion is neutral.

(d) prejudice to the employer (including prejudice caused by the delay);

[11] Mr Dave Brindle, who appeared on behalf of Cross Verwijmeren, did not point to any particular prejudice that the employer would suffer. He did however submit that the company would be put to a lot of work and time if the case were to proceed. The lack of prejudice weighs in favour of a finding that there were exceptional circumstances.

(e) the merits of the application; and

[12] Mr Schumacher had not been employed by the Respondent since January 2014. It appears that he was stood down and obtained some other employment locally. He remained on the books.

[13] On 9 June 2014, he was reassigned to work on the Atlas Iron Abydos Road Project. He was due to start work on 17 June 2014. Prior to this assignment Mr Schumacher was asked to do some work for a few days at the Picton yard which involved cleaning vehicles and driving a truck.

[14] Mr Schumacher alleged that the chemical he was required to use was unsafe and affected his ability to drive. Mr Schumacher alleges that his employment was terminated because of a complaint received by Cross Verwijmeren about his driving. Cross Verwijmeren accepts that it received a complaint about Mr Schumacher’s driving but denies that this was the reason for the termination of his employment. Cross Verwijmeren said that after offering Mr Schumacher the new assignment it had been advised of the loss of a contract at the site. As it had existing employees who had already been inducted at the site who could do the work, it decided not to mobilise Mr Schumacher to the site. Instead it paid him two weeks pay in lieu of notice.

[15] It is not clear from this material what the status of Mr Schumacher’s employment with Cross Verwijmeren was. Be that as it may, Cross Verwijmeren Pty Ltd did not suggest that Mr Schumacher had not served the minimum employment period.

[16] Cross Verwijmeren Pty Ltd said that it terminated Mr Schumacher’s employment due to a shortage of work. In deciding whether this was a genuine redundancy the Commission would have to consider the evidence about the operational requirements as well whether Cross Verwijmeren Pty Ltd complied with its obligation, if any, to consult under a modern award or an enterprise agreement. Further, the Commission would need to consider if there had been any position to which Mr Schumacher could have been redeployed.

[17] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. That Mr Schumacher’s claim is not without merit weighs in favour of a finding that there are exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[18] This criterion is neutral.

Conclusion

[19] While Mr Schumacher’s claim is not without merit, this is not sufficient to outweigh the lengthy unexplained delay. In making my decision, I make no judgement about Mr Schumacher’s claim that he was required to work unsafely.

[20] I find therefore that there are no exceptional circumstances warranting an extension of time and the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

W Schumacher on his on behalf.

D Brindle for Cross Verwijmeren Pty Ltd.

Hearing details:

2014.

Melbourne:

December 16.

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