Fair Work Act 2009_

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Juan Petrie (Mr Petrie or the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

[3] Mr Petrie's application states that he was dismissed on 18 September 2013. His application was made on 14 October 2013. Mr Petrie's application was made five days after the 21 day time limit had passed.

[4] Consequently I wrote to Mr Petrie explaining the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[5] Mr Petrie has provided a written submission as has the respondent in reply and this decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

[6] The applicant has explained that he was involved in a car accident on 8 September 2013 and consequently admitted to hospital the following day. He was discharged from hospital on 11 September 2013.

[7] The applicant says that for the two weeks thereafter he was not able to handle any stressful situations.

[8] The applicant has provided a letter from Dr Michael Chong dated 28 October 2013 that explains that following his discharge from hospital the applicant continued to have neurological symptoms and vision problems. The doctor states that for a period of two weeks the applicant was "...unable to cope and deal with stress."

[9] Similar statements are provided by a number of other individuals in support of the doctor's assessment of the applicant's lack of capacity for the period after he left hospital.

[10] Whilst I note that during this period the applicant also took legal advice about his employment situation and wrote to the respondent I am satisfied on the evidence of the applicant's treating general practitioner that for two weeks after his discharge from hospital the applicant was, on balance, not able to make this application because of his health. These circumstances are in my view an acceptable explanation for why this application was not made prior to 25 September 2013, being seven days after the applicant was dismissed.

[11] Consequently there is an acceptable explanation for all of the delay of five days in making this application.

Any action taken by the person to dispute the dismissal

[12] There is a dispute between the parties as to whether the applicant resigned or was dismissed. The applicant did write a letter to the respondent challenging the respondent's view that he had resigned but other than this he did not take any other action to dispute the alleged dismissal by the respondent.

Prejudice to the employer (including prejudice caused by the delay)

[13] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

[14] There is little information before the Commission regarding the circumstances leading up to the employment ending. Given this, it is not possible for the Commission to form a view about the merits of the substantive application and in any event it is not for the Commission to conduct a full examination of the evidence regarding this in circumstances where the Commission is only dealing with the preliminary issue regarding an application to extend time.

Fairness as between the person and other persons in a similar position

[15] There is no information regarding fairness between the applicant and other persons in a similar position.

[16] In this case I am satisfied that there was an acceptable reason for all of the five day delay in making this application. The other factors to be taken into account are neutral in my view.

[17] Consequently I am satisfied in this instance that there are exceptional circumstances and further that it is appropriate that an extension of time to make this application be allowed. An order to that effect will be issued in conjunction with this decision.

[18] In due course the Commission will advise the parties of the date and time for a conference to be convened to deal with this application.

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