[2009] FWA 1431

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

DEPUTY PRESIDENT MCCARTHY

PERTH, 2 DECEMBER 2009

Application lodged beyond time allowed –further period allowed.

[1] The application in this matter was filed on 9 October 2009. According to the application Matthew Palmer’s (“the applicant”) employment was terminated on 14 September 2009. The application having been lodged more than 14 days after the termination took effect, the applicant sought an extension of time to lodge the application (pursuant to s.394 (3) of Fair Work Act 2009 (“the FW Act”).

[2] The applicant requested an extension of time primarily on the grounds that he had wrongly lodged an application in the Western Australian Industrial Relations Commission (“the WAIRC”).

[3] On 30 October 2009 RCR Engineering Pty Ltd (“the respondent) lodged a response to the application and objected to the application as it had been lodged outside of 14 days, the time allowed under the FW Act for applications to be lodged. A conference was held before a conciliator on 2 November 2009. A report from that conference notes that the application was lodged beyond the time allowed and the employer objected to an extension of time.

[4] On 9 November 2009 I wrote to the applicant and requested that he provide me with an explanation as to what exceptional circumstances there are such that I should allow an application. The applicant responded on 10 November 2009, essentially repeating the reasons he had provided with the application.

[5] The applicant asserts that

• He lodged an application with the Western Australian Industrial Relations Commission (“the WAIRC”) within three days of the termination of employment;



• Prior to lodging the application the applicant looked up the WAIRC website which he assumed the WAIRC was the correct place to lodge the application as the respondent’s head office is in Western Australia;



• After lodging that application he sought legal advice and the issue of jurisdiction was overlooked when he sought that advice;



• After he had lodged the application the respondent apparently lodged an objection in the WAIRC based on jurisdictional grounds but not until 20 days after the application had been lodged;



• He took steps, including attempting to get further advice which resulted in a delay of a couple of days, to lodge an application in Fair Work Australia (“FWA”);



• The respondent would not be prejudiced;



• The merits of the application supports an extension of time;



• It would be fair to allow the application as the intent of the time limitation is to stop people from lodging claims long after the event and not prevent applications from those that have taken immediate steps to contest a termination of employment;



• It is inferred that it would be fair to allow the application as the employer contributed to it being out of time by not responding to the application in the WAIRC quickly; and



• The applicant then compared his situation to the infamous underarm bowling incident in 1981 in a cricket match between Australia and New Zealand stating he merely wanted “a chance to swing at that last ball.”

[6] I then wrote to the respondent on 16 November 2009 and provided an opportunity to provide any further information and attached a copy of the applicant’s response to a similar request. The respondent informed me that they did not wish to provide any further material.

[7] An application claiming unfair dismissal must be lodged within 14 days of the termination of employment or such extra time as Fair Work Australia (“FWA”) allows. For a further period to be allowed FWA must be satisfied that there are exceptional circumstances after taking into account a number of factors.

[8] Here it is clear that the applicant took action to contest his termination of employment almost immediately but in the wrong jurisdiction. That primarily is the reason for the delay. That application, had it been lodged in FWA, would have been well within the time allowed by the FW Act.

[9] The respondent responded to the application lodged in the WAIRC within the time provided for response there but it was some 20 days after the application had been lodged. The respondent disputed the WAIRC’s jurisdiction to deal with the application which first alerted the applicant to his error. The effect of this was that the respondent lodged the jurisdictional objection in the WAIRC beyond the time allowed for the applicant to lodge an application in FWA. Had it been lodged more expeditiously the applicant most likely would have lodged an application with FWA within the time allowed. Indeed when the applicant became aware that his application was lodged in the wrong jurisdiction he lodged an application with FWA within three days.

[10] I have considered the prejudice that may be suffered by the respondent as I have considered the merits of the application. I have also considered the fairness to this applicant compared to others in a like position.

[11] I have had particular regard to the fact that the respondent by not lodging a notice in the WAIRC until well after the time for lodging applications in the FWA had expired. I am not inferring that the delay by the respondent was deliberate however it did have the effect of denying the applicant to lodge his application here within the time allowed.

[12] It appears to me that the circumstances here are exceptional. Therefore I will allow a further period for the application to be made, that period extending to the time that the application was lodged.

DEPUTY PRESIDENT

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