[2013] FWC 3216

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Summary: unfair dismissal remedy s.394 - extension of time - application to State jurisdiction - unexplained delays - no exceptional circumstances - application dismissed.

[1] This matter arose from an application by Mr Toni Reihana ("the Applicant") under s.394 of the Fair Work Act 2009 ("the Act") through which he sought an unfair dismissal remedy as a consequence of his dismissal by Mastercare Cleaning Services ("the Employer"). Over the course of his employment the Applicant performed duties as a window cleaner for the Employer.

[2] The matter was subject to an unsuccessful conciliation conference. Thereafter the Employer objected to the substantive application being dealt with before such time as the application was subject to consideration under s.394(2)(b) of the Act.

[3] The Employer so objected because the application was made to the Fair Work Commission on 13 February 2013, whereas the date the dismissal took effect was 23 December 2012. That is, the application was made some 52 days after the dismissal took effect, and therefore somewhat beyond the 14 days stipulated at s.394(2)(a) of the Act (as it was at the time of the dismissal).

[4] Both parties sought to be heard in relation to this matter and as a consequence a hearing was conducted on 21 May 2013.

[5] Section 394 of the Act relevantly provides as follows:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

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

[6] The Applicant's evidence in relation to the various matters set out at s.394(3) of the Act is as follows.

Section 394(3)(a)

[7] The Applicant claims that he posted by ordinary surface mail an application for an unfair dismissal remedy on 25 January 2013. However, he directed this application to the Queensland Industrial Relations Commission.

[8] A delegate of the Industrial Registrar wrote to the Applicant on 29 January 2013 indicating that the Applicant's correspondence had been received that day and that he had made application to the wrong jurisdiction. The correspondence informatively provided the Applicant with the online address for the Fair Work Commission as well as providing the Commission's telephone contact details.

[9] The Applicant claims that he would have received the correspondence of 29 January 2013 on 1 February 2013.

[10] Upon receipt of that correspondence the Applicant claimed that he "acted quick smart" to make an application to the Fair Work Commission. "My quick action", so the Applicant claimed further, meant that he was able to lodge the new application on 13 February 2013.

[11] The Applicant was able to provide no meaningful evidence that provided an explanation as to why he did not set about sending by ordinary surface mail the application to the Queensland Industrial Relations Commission before 25 January 2013. Even accounting for what he may have presumed to have been the 21 day time limit applicable to applications in the former Queensland jurisdiction, the Applicant was still effectively out of time in regard to that presumption on his part (if indeed he actually held that presumption at any time).

[12] The Applicant did attempt to construct an argument that his application to the Queensland Industrial Relations Commission was delayed by the intervention of a number of public holidays (Christmas Day, Boxing Day, and New Year's Day). Despite this, again, the Applicant's application to the State jurisdiction was not received until 29 January 2013.

[13] This was not an application that was affected by the day on which an application was due but where that day was a weekend or a public holiday (as set out at s.36(2) of the Acts Interpretation Act 1901).

[14] Similarly, he was able to provide no meaningful explanation as to why a further delay occurred between 1 February 2013 (if I accept the Applicant's evidence as to the date on which he received the correspondence from the Queensland Industrial Relations Commission) and 13 February 2013 in making his application, finally, to the Fair Work Commission - though in the Applicant's own mind he claims to have acted with all speed.

[15] No issue arises in relation to the date or time at which the Applicant became aware of his dismissal as opposed to when it took effect.

[16] The Applicant appears to have agitated with the Employer at the time of his dismissal and subsequently that he had concerns over entitlement issues and that he would pursue these through the Fair Work Ombudsman. The Applicant made reference to an employment court but it is difficult to determine whether he was referring to an unfair dismissal remedy or to his entitlement concerns. On balance, it is sufficient to say that the Applicant held concerns about the circumstances of his dismissal and indicated to the Employer that he would challenge its conduct, in some regards at least.

[17] The Employer's claim was that it would be prejudiced by the application essentially because it believes the application lacked any merit in substantive terms. Other than that, the Employer did not demonstrate that it would in some demonstrable manner be inconvenienced by providing for the application in another period of time (outside the 14 day limitation), such as by the unavailability of witnesses, documents having been lost etc.

[18] The Applicant pressed the view that his application had considerable merit. Essentially, the Applicant appears to have been dismissed because he did not provide notification to the Employer before such time as he embarked on a period of leave (to New Zealand, as I understand it).

[19] It appears that the Applicant, unbeknownst to the Employer, arranged for a substitute for himself during his period of absence. In any event, the substitute employee did not present to perform the Applicant's duties over the period of his leave.

[20] The Employer contends that the Applicant had been warned about this practice at a previous time and that in any event it was improper for him to engage a substitute person to perform his duties whilst he was absent, as this gave rise to insurance issues, particularly given the nature of the work.

[21] The Applicant argued that the Employer was relying on formalities that did not exist in the workplace. He argued that he was given nominal supervision over the course of his employment and that it was appropriate for him to conduct himself in an informal manner for the purposes of his leave arrangements. The Applicant states that he had informed a store manager whose windows he was cleaning of his intentions, but he did not inform a supervisor.

[22] The Applicant claims he arranged for a substitute person to perform his duties as an act of "ruthless efficiency" and to save time and effort and delay by the Employer (even though the substitute employee was a 'no show'). In the course of the hearing the following exchange took place between the Applicant and the Employer:

It was ruthlessly efficient of me to get Sarah to fill in for me because that's what Sue the supervisor would have done. All I was trying to do was help her out.

But, Mr Reihana, you were very happy to take the money from those two cleans and then apparently you were going to pay Sarah for that. But as an employee you cannot do that. You cannot (indistinct) and then pay someone else?---Yes, but it just saves all the hassle, you know what I mean?

It hasn't saved anything?---I got paid and said look here's the money for those two cleans. What was said there's your work, and it would have saved Sue the supervisor and your payroll people extra work.

It wouldn't have saved us any money if that person had injured themselves during that shift when we thought that you were on and there was someone else. So no, it doesn't save us any time, money, or anything?---Well, that's what I was trying to do. That's all I was trying to do. And that's how I roll, that's how I've operated over the last four and a half years that I've been working for Mastercare.

[23] I have not heard the substantive matter in exhaustive detail and the parties were not under oath when the above exchanges took place, though at the level I have explored the matter the Applicant's conduct does give rise to some particularly significant issues. Be that as it may, I will take the matter no further for the time being. The merits of the application therefore are of neutral effect on my overall consideration.

[24] There are no other employees whose circumstances were introduced in any detail for the purposes of consideration in this matter.

[25] The Applicant was unable to provide any explanation of any substance for the delay in his application for the period prior to making the application with the Queensland Industrial Relations Commission. That application was not received by the Queensland Industrial Relations Commission until 29 January 2013 (whereas the Applicant's dismissal occurred on 23 December 2012).

[26] Once having been informed that his application should have been made to the Fair Work Commission, a period of eleven or twelve days lapsed until the application itself is made. Though the Applicant claimed he "acted quick smart" in the circumstances, that period of elapsed time is without substantive explanation.

[27] There are no exceptional circumstances evident in the Applicant's evidence in this respect.

[28] Nor are any of the other circumstances set out in the Applicant's evidence persuasive that there were exceptional circumstances relating to the delay in his application for an unfair dismissal remedy.

[29] As a consequence I dismiss the application under s.394 of the Act and do not provide for the application to be made in a further period of time under s.394(2)(b) of the Act.

Mr J. Zlattner and Ms N. Cohen, for the Respondent

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