William James Simpson v Aboriginal Hostels Limited
[2009] FWA 900
•29 OCTOBER 2009
[2009] FWA 900 |
|
DECISION |
Fair Work Act 2009
s.643—Termination of employment
v
Aboriginal Hostels Limited
(U2009/11002)
COMMISSIONER RAFFAELLI | SYDNEY, 29 OCTOBER 2009 |
Termination of employment – extension of time.
[1] Section 643(14) of the Workplace Relations Act 1996 (the Act) provides that an application under section 643 must be lodged within 21 days after the day on which termination took effect. It also says:
“OR within such period as the Commission allows on an application made during or after those 21 days.”
[2] Here, Mr William James Simpson (the Applicant) did not lodge the application within 21 days of his termination by Aboriginal Hostels Limited (the Respondent) on 13 May 2009. In fact the lodgement did not occur until 4 August 2009. The Applicant has requested that the time be extended.
[3] Section 647 of the Act allows extension of time applications to be dealt with without a hearing taking place.
[4] I decided to deal with the extension of time application without a hearing after a conciliation conference was unsuccessful. On 11 September 2009 I wrote to both parties inviting them to provide any further information or submissions (to that already provided) as to why the extension of time should or should not be granted.
[5] The onus in establishing that such time should be extended lies on the applicant. It is the applicant’s matter and it is the applicant that has failed to act in the manner prescribed in the Act.
[6] Within the relevant part of the Act a note appears referring to principles enunciated in Brodie Hanns v MTV Publishing [1995 67 IR 298.]
[7] I take due regard to those principles. Those principles are as follows:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[8] I now turn to those principles and apply them to the information and submissions that have been provided to the Commission.
Acceptable explanation for the delay
[9] The Applicant alleges that he failed to lodge this application within twenty one days as it was never clear to him as to when he had actually been dismissed or what his legal status was. He had a range of communication with Centrelink, his employer, Comcare, the Anti-Discrimination Board and the State Office of Fair Trading. He had never received a separation certificate. It was only on 31 July 2009 that on the advice of a barrister he became aware of his rights under this Act. He then made application on 4 August 2009.
[10] The Respondent did not provide any material.
[11] On the basis of what is before me, I accept the version of events as put by the Applicant and I find that it provides an acceptable explanation for the delay in filing the application.
Action taken by employee to contest the termination
[12] According to the Applicant he took a range of steps including approaching the Anti-Discrimination Board and the Office of Fair Trading. I find that the Applicant took steps additional to filing this application.
Prejudice to respondent
[13] On the basis of what is before me I can find no prejudice occasioned by extending the time in which to lodge the application.
Merits of the application
[14] On the limited material before me, I find that the Applicant’s case cannot be said to be without merit.
Fairness as between the applicant and other persons in a like position.
[15] This is not a relevant consideration in the current circumstances.
Conclusion
[16] Having duly considered all the matters put to me by both parties in light of the principle enunciated in the Brodie-Hanns decision, I am prepared to exercise my discretion so as to allow the filing of the application on the day it was filed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR990363>
0
0
0