Fair Work Act 2009

s.394 - Unfair dismissal

Termination of employment - jurisdiction - extension of time.

[1] Mr Wayne Nichols (Mr Nichols or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Alsco Pty Ltd (Alsco or the Respondent).

[2] Mr Nichols was told he was dismissed on 7 January 2019 and the dismissal took effect that day. The application was made on 4 February 2019.

[3] The application has been lodged more than 21 days after the alleged dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394(2) 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) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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."

[5] Consequently I wrote to the Applicant explaining to him the requirements of section 394 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.

[6] The Applicant provided a written response to the Commission's directions.

[7] 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.

[8] Mr Nichols has explained that the reason for the delay in making this application is that he tried to sort things out with the Respondent's HR department first.

[9] Mr Nichols had previously dealt with the Respondent's HR department in Sydney. After being dismissed on 7 January 2019, he says his first instinct was to contact the HR department and the person he had previously dealt with to ask her to look into how his dismissal was handled, the allegations against him and how he in his view felt that none of the procedures set out in the company handbook had been followed.

[10] Consequently he sent emails to a HR representative on 9 and 14 of January 2019, raising concerns about his dismissal.

[11] On 22 January 2019 he again emailed the HR representative saying that since he had received no feedback in regards to his complaints about his termination he will "..now go to my union and to Fair work Australia to try and sort out the issue...."(sic).

[12] On 30 January 2019 Mr Nichols sent another email to the HR representative attaching the three previous emails he had sent and received no reply about advising he would fight the way in which he was dealt with and will go higher if needed. He went on to thank the HR representative for their help in the previous issue.

[13] Mr Nichols says that while emails regarding his dismissal were ignored other emails sent by him during this time were answered promptly. He says that after two weeks it became obvious to him that his inquiries were being ignored.

[14] He says following this he contacted his union and started searching for other resources to help him deal with the situation. He says this was a slow process but because he had no knowledge of their being a time limit it was not dealt with in any urgency.

[15] Mr Nichols says by the time he was referred to the Commission and he was satisfied that this was the best way to move forward with the matter the time window in which he was supposed to lodge his complaint had closed.

[16] Considering the reasons for the delay in this matter as explained by Mr Nichols, it has been held on a number of previous occasions by this Commission that a choice by a dismissed employee to delay making an application to the Commission whilst they sought a review or an appeal of their dismissal internally with their employer is not an acceptable reason for the delay. As in those other cases Mr Nichols could have pursued the internal review of his dismissal with his employer as he did after lodging this application. Pursuing the internal review as he chose to, did not prevent him from making this application within time and is not an acceptable reason for the delay.[1]

[17] Separately it is well established in the case law that an employee being unaware that there is a 21 day time limit is not an acceptable reason for the delay in making an application, nor is it an exceptional circumstance.

[18] Not being aware of the law is not accepted as a reason to fail to comply with it.

Any action taken by the person to dispute the dismissal

[19] Mr Nichols did dispute his dismissal in the emails he sent to the Respondent's HR department.

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

[20] I do not accept that there is any prejudice to the employer if a further period to apply was allowed in this case.

[21] Mr Nichols was dismissed for serious misconduct. This followed a complaint relating to sexual harassment in the workplace. The letter of termination records that Mr Nichols denied the incident occurred as alleged and states he put his hands on a female co-worker's shoulders to move her out of the way.

[22] The letter of termination states Mr Nichols received a first and final warning in 2013 for the same offence. It also states he has undertaken refresher training in EEO and the Respondent's Bullying and Harassment policies in 2013, 2015, 2016 and 2018.

[23] In his application Mr Nichols says the dismissal was unfair and he alleges that a number of other employees have had affairs or have had sex in the workplace with other staff.

[24] Mr Nichols in his application also complains he was never informed in the proper manner and the rules and policies were not followed in the investigation.

[25] Mr Nichols in his application states "Staff who have asked me not to touch I don't".

[26] Only after a full hearing of these matters would it become clear what the truth of the accusations are versus Mr Nichols denials and counterclaims.

[27] As is often the case without the matter being fully argued it is difficult for the Commission to determine whether the merits of the application do or do not support an extension of time. Consequently I view the merits of the application as a neutral factor in this decision.

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

[28] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

[29] The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to make his application beyond the statutory time limit of 21 days. I have considered the information provided by Mr Nichols and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[30] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and so must be dismissed.

[31] An order to that effect will be issued in conjunction with this decision.

[1] [2011] FWAFB 1515 and [2011] FWAFB 5605.

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