William Reze v Galaxy Cove Pty Ltd T/A Power on Electrix

[2013] FWC 9219

[2013] FWC 9219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Reze
v
Galaxy Cove Pty Ltd T/A Power on Electrix
(U2013/13137)

DEPUTY PRESIDENT MCCARTHY PERTH, 22 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] An application for Unfair Dismissal Remedy (the Application) was lodged by Mr William Reze (the Applicant) on 2 September 2013. The Applicant asserted that he had been unfairly dismissed from his employment with Galaxy Cove Pty Ltd (the Respondent) on 9 August 2013. The Employer’s Response to the Application attached a letter of termination which stated that the Applicant was given notice of termination four weeks prior to coming into effect on 9 August 2013.

[2] The Application was lodged outside the time allowed by s.394(2) of the Fair Work Act 2009 (FW Act). I therefore wrote to the Applicant seeking an explanation as to why the Application should be allowed.

[3] The Applicant informed me that at the time of the dismissal he was preoccupied with trying to ensure his future financial income which involved completion of his electrical contractors course as he was intending to set up his own electrical contracting business. He also says that he was under pressure to cover his financial obligations and dealing with stress and emotional trauma involving his partner. Also during that time he says that he was making enquiries to establish and understand his legal rights.

[4] The Respondent submitted that the Applicant was given two weeks leave in June 2013 on the understanding he was undertaking the electrical contractors course at that time. They also assert that he had ample time to attend to the requirements of the course he was undertaking including the period of four weeks where he was serving out his notice. The Respondent also asserts that there was other income the Applicant accessed during that period that would have assisted with his financial obligations. They also say that they had provided compassionate leave at the Applicant’s request regarding the emotional trauma he had referred to. The Respondent also asserted that during the period of notice, had the Applicant requested it, time off would have been provided for him to get advice or otherwise ascertain his legal rights.

[5] The reason for the delay was primarily the Applicant concentrating, quite understandably, on obtaining qualifications that would assist him in securing income by establishing his own business or working for another business. I do not find to be influential in establishing an exceptional circumstance. Nor do I find the pressure of financial obligations or the seeking of advice or information regarding his right to make an application of this nature influential reasons why time should be extended.

[6] The Applicant first became aware of the dismissal on 12 July 2013 and that it would take effect on 9 August 2013. This element of the circumstances way against the extension of time.

[7] There was no explanation of any action taken by the Applicant to dispute the dismissal other than potentially him seeking advice about his rights. However, no information or detail was provided that supported any contention that he had taken action to dispute the dismissal.

[8] The length of the delay is not long and I do not consider there would be any real prejudice to the employer should the Application be allowed.

[9] The Respondent says that the termination was a consequence of the completion of a number of larger works and that a business downturn has been suffered. The Applicant however says he did not receive any redundancy payment and that he had been advised that the Respondent had hired additional electrical staff within only a short time of his dismissal. The Applicant also appears to assert, from the attachment to his Application, that he had been verbally told that he was not making the company any money, that he was incompetent, and his heart was not with the company partly because he had completed his electrical contractors course, he was only concerned with his own future and his heart was not with the company.

[10] The merits of the Application from the explanations given are not strong, but then neither are the arguments of the Respondent compelling. It does seem that the issue if it was fully canvassed would turn on whether the dismissal was a genuine redundancy or not. In any event I have not given much weight to the merits component of my considerations.

[11] Most applicants lodged their applications within the time allowed. Most applicants also face the same sorts of issues the Applicant here faced such as the securing of an income, the ascertaining of rights and at the same time dealing with emotional and other consequences of the dismissal. In my view, it would be unfair to persons in a similar position to those here, to be obliged to lodge within the time allowed and this Applicant be allowed to lodge after the prescribed time.

[12] I am not satisfied that exceptional circumstances exist and therefore will not allow the Application. The Application is therefore dismissed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 7 November 2013

Respondent, 18 November 2013

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