Wayne Theobald v Vyscot Pty Ltd T/A Captain Cook Cruises (WA)

[2014] FWC 5971

[2014] FWC 5971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Theobald
v
Vyscot Pty Ltd T/A Captain Cook Cruises (WA)
(U2014/7853)

DEPUTY PRESIDENT MCCARTHY PERTH, 29 AUGUST 2014

Application for relief from unfair dismissal.

[1] Mr Wayne Theobold (the Applicant) lodged and Unfair Dismissal Application (the Application) on 13 June 2014. The Application states that he was dismissed from his employment with Vyscot Pty Ltd trading as Captain Cook Cruises (WA) (the Respondent). The Application also states that the dismissal took effect on 15 May 2014. The Application was therefore lodged outside the 21 day time limit allowed by s. 394(2)(a) by the Fair Work Act 2009 (the FW Act).

[2] The Applicant stated in the Application that the time allowed should be extended for the following reasons:

“A week after my dismissal I started to research what avenues were available to me online, I misinterpreted the time frame requirements with regard to “State System Employees” (28 days) & “National System Employees” (21 days) while doing my initial research. Thinking I had ample time (28 days) I decided to mentally step back from the situation, until yesterday when I sat down to fill out & then lodge my application thinking the deadline was today (Thursday 12th June).

This oversight on my part highlighted my mental state at the time, which was a mixture of anger, disappointment & disbelief at the situation & the manner in which it was handled. Under normal circumstances I would have been more thorough in my research & ensured the application was lodged in the required timeframe.”

[3] I wrote to the Applicant on 25 June 2014 identifying the matters I must take into account and providing him with the opportunity to provide me with information on those matters by 9 July 2014. I did not receive a response and was disposed to dismissing the Application however, I wrote to the Applicant again on 17 July 2014 indicating my intention to dismiss the Application and that I would do so unless he responded to my request of 25 June 2014.

[4] The Applicant responded on 30 July 2014 and gave the following further explanations:

“A week after my dismissal I started to research what avenues were available to me online, I misinterpreted the time frame requirements with regard to “State System Employees” (28 days) & “National System Employees” (21 days) while doing my initial research. Thinking I had ample time (28 days) I decided to mentally step back from the situation, until yesterday when I sat down to fill out & then lodge my application thinking the deadline was today (Thursday 12th June).

The oversight on my part highlighted my mental state at the time, which was a mixture of anger, disappointment & disbelief at the situation & the manner in which it was handled. Under normal circumstances I would have been more thorough in my research & ensured the application was lodged in the required time frame.


I am unable to provide any other reason apart from the information provided above.
Impaired judgement and an inability to process information due to duress is well documented & I would ask that this be taken into consideration with regard to the lateness of my initial application.

 
I feel there is merit in my application, as my dismissal was not based on a factual circumstance whereby a breach of confidentiality had taken place. As there is a history of heavy handed decisions being carried out by the companies management, & in particular the CEO, I would urge the Fair Work Commission to investigate the manner in which the workforce is being treated both past & present. An employee was recently informed by the CEO, while querying yet anothers dismissal, “... casual employee, I can do what I like”.

[5] I gave the Respondent the opportunity to comment on the Application for the time to be extended. The Respondent stated that:

● a misinterpretation of the time allowed because of a longer time allowed in the Industrial Relations Act1979 (WA) (the WA Act) does not establish an exceptional circumstance.
● even if the reasons was a misinterpretation the Application was lodged beyond the time allowed by the WA Act.
● an oversight due to the Applicant’s mental state is insufficient to create an exceptional circumstance.
● the Applicant became aware of his dismissal at 5:45pm on 14 May 2014.
● no submission was made on prejudice to the Respondent.
● the merits of the Application are such that the Application has no reasonable prospects of success as the Applicant was engaged on an ad hoc basis as a skipper and only after he had indicated his availability. There was no guarantee of ongoing work and he had the option of refusing work and therefore the Applicant is not a person protected unfair dismissal.

Consideration

[6] I accept that a reason for the delay was due to the Applicant holding a belief that he could lodge the Application within 28 days. I note that if the date of his dismissal was the date the Respondent asserts then the Applicant would have lodged the Application beyond the 28 days he thought he was allowed. However, even if the Applicant did lodge the Application within 28 days it is clear that it was beyond the time allowed by the FW Act. The Applicant also says that his mental state affected the thoroughness of his research. I do not consider these reasons for the delay weighs in favour of a finding of an exceptional circumstance.

[7] I accept for the purposes of this decision the Applicant’s version that he first became aware of the dismissal on 15 May 2014 even though there is a dispute about that.

[8] The action the Applicant appears to have taken was to perform some research. This is the only action he appears to have taken. It is insufficient to incline me towards regarding that as a reason towards finding an exceptional circumstance.

[9] The Respondent made no submission on prejudice that the Respondent might suffer and I give no weight to this element of my considerations.

[10] There appears to be a dispute over whether the Applicant is a person protected from unfair dismissal under the FW Act. I give this element of my deliberations neutral weight.

[11] Taking the above matters into consideration I find that exceptional circumstances do not exist here. I therefore will not allow the Application.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 30 July 2014.

Respondent, 12 August 2014.

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