Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel

[2016] FWC 1978

[2016] FWC 1978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lee Welthy
v
J Factor Holdings Pty Ltd T/A South Beach Hotel
(U2016/4660)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Lee Welthy alleged the termination of his employment on 16 October 2015 was unfair.

[2] His unfair dismissal application lodged on 18 February 2016 was not made within 21 days of the date of the dismissal.

[3] Ms Marija Vujcic sought permission to appear. Mr Nikola Jurin, the General Manager of J Factor Holdings Pty Ltd, did not attend the hearing as he had business matters that required his attention. Ms Vujcic made no relevant submissions in support of an application for permission to appear. Mr Welthy did not oppose permission being granted. In circumstances where Mr Jurin was unable to attend the hearing, I accept that it would have been unfair not to permit J Factor Holdings Pty Ltd to be represented.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]”

(a) the reason for the delay;

[6] Mr Welthy lodged an application to the Western Australian Industrial Relations Commission (WAIRC) on 31 October 2015 against Mr Nikola Jurin. Mr Welthy said he was unsure of who employed him.

[7] Mr Welthy said that Mr Jurin filed a response on 19 November 2015 but did not object to the application on the basis that it should be heard in the Fair Work Commission. The matter was set down for conciliation on 8 December 2015 but Mr Jurin was unable to attend. The matter was listed for 23 December 2015 but it also did not proceed. Approximately two days before the next hearing on 6 January 2016, Mr Welthy was advised that the application was objected to on the basis that it was lodged with the wrong commission. At that hearing the WAIRC member required additional information and a final hearing was held on 11 February 2016 when it was made clear that Mr Welthy was in the wrong commission.

[8] Mr Welthy accepted that at the January hearing he was advised by the Commissioner to review his own records. Mr Welthy said he spoke to a lawyer who advised him to continue with his application in the WAIRC until it was determined. Mr Welthy accepted that he did not provide his lawyer with a copy of his contract of employment.

[9] Mr Welthy said the delay in lodging the form, after it was clear he was in the wrong place, was due to him going back to his solicitors and putting the application together.

[10] Mr Welthy accepted that his contract of employment was made between him and J Factor Holdings. At the time he entered into his contract, he was provided with a copy of the National Employment Standards Fact Sheet. He accepted that his pay slips and group certificates were issued by J Factor Holdings. In seeking advice he did not provide any of this information to his lawyers. The WAIRC application form makes it clear that if the employer was a trading corporation then the WAIRC may not have the jurisdiction to deal with the matter.

[11] Mr Welthy, apart from his lack of knowledge, was unable to explain why he thought his employer was Mr Jurin as opposed to J Factor Holdings.

[12] In any event, Mr Welthy was put on notice around 4 January 2016 that this was an issue and he did not provide those advising him with the necessary paperwork to ensure that he was provided with accurate advice. Again, when given advice by the WAIRC to make his own investigation, he also did not provide this information to his representative.

[13] Mr Welthy, by deciding to continue with his application before the WAIRC, further delayed this application.

[14] Once it was determined that Mr Welthy should have lodged his application with the Fair Work Commission, he did not act promptly. He was by this time well beyond the 21 days provided to lodge his application. He was required to act promptly at this time yet he took another seven days to prepare and lodge his application.

[15] It is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission. I accept that some of the delay was caused by the failure of Mr Jurin to object to Mr Welthy’s application immediately. However once he was alerted to the issue, it was Mr Welthy’s obligation to seek advice. While Mr Welthy he said that he sought advice, I am not willing to find that the advice received by him was incorrect in circumstances where he had documents which he did not provide to his representatives which would have enabled them to provide him with accurate advice. It was not reasonable for Mr Welthy to wait until the issue of the WAIRC’s jurisdiction was determined before he lodged this application. Further, I do not consider he had a reasonable explanation for the delay after this date. The unfair dismissal forms are not complex and do not require such a significant period of time to complete. I am therefore not satisfied that Mr Welthy had a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.

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

[16] Mr Weltly was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[17] Apart from asking why he was being dismissed and lodging his application with the State Commission, Mr Welthy took no other steps to dispute his dismissal.

[18] I consider this criterion to be a neutral consideration.

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

[19] J Factor Holdings said it would be prejudiced because the cost of representation would be considerable and because Mr Jurin’s time would be taken away from the business. No evidence was called to support this submission. While I accept that J Factor Holdings would suffer some prejudice, it is not sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[20] Mr Welthy said his dismissal was unfair. He said he had not been given any verbal or written warnings about his performance. No evidence was called by J Factor Holdings in relation to merit.

[21] On the basis of the evidence before me, I accept that Mr Welthy has an arguable case and that weighs in favour of a finding of exceptional circumstances.

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

[22] There were no submissions that there were any persons in a similar position.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. While merit weighs in favour of extending time, Mr Welthy’s case is not so strong as to outweigh his lack of a reasonable explanation for the delay in lodging his application. None of the other criteria support a finding of exceptional circumstances. According, I decline to grant Mr Welthy an extension of time and therefore his application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

L. Welthy on his own behalf.

M. Vujcic for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

March 30.

 1   [2011] FWAFB 975

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