FWA 4080
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Paul Carfoot
SAC Sydney Archdiocese T/A St Vincent De Paul Society
SYDNEY, 10 JUNE 2010
Extension of time
 On 25 March 2010, Mr Paul Carfoot (the Applicant) made application for Fair Work Australia to deal with a general protection dispute (section 365 of the Fair Work Act 2009 (the Act)). The dispute concerned his dismissal by his former employer, SAC Sydney Archdiocese T/A St Vincent De Paul Society (the Respondent).
 The termination of employment had occurred on 19 January 2010. Section 366 of the Act provides as follows:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
As can be seen the application was made beyond 60 days after 19 January 2010.
 Consequently on 19 April 2010, I invited both the Applicant and the Respondent to provide written submissions as to why the time for lodgement should (or should not) be extended. I also indicated that I would not hold a hearing and determine the matter on the basis of the submissions filed. Both the Applicant and the Respondent provided submissions.
 I propose to deal with the separate consideration, set out in section 366 (2).
The reason for the delay (section 366 (2)(a))
 The Applicant put that, on being terminated on 19 January 2010, he had sought to apologise for something he had said. He then made enquiries as to his rights and had been told that given the brevity of his employment he could not pursue an unfair termination application. He was also made aware that the time in which to lodge such an application had lapsed.
 Then on 24 March 2010, he telephoned Fair Work Australia and received advice that he could pursue an application based on termination for prohibited reasons. He considered that his termination had in fact concerned his physical and/or mental disability. On the next day he personally attended Fair Work Australia and lodged his application.
 He put that his delay was occasioned by his disability, his lack of experience with the legal process and advice previously given that was limited to unfair termination. He had acted promptly after being better advised.
 The Respondent put that ignorance of statutory time limits is not of itself sufficient to justify any extension of time. The Applicant did not provide details of who had advised him as to his lack of rights as to unfair termination. The Applicant’s contact with Fair Work Australia on 24 March 2010 was some nine weeks after termination, a lengthy period after termination. It was implied that the Applicant had plenty of time to have acted earlier.
 I am satisfied that on the basis of the Applicant’s contention, his delay was occasioned by the incomplete advice originally given to him. On being better advised he moved quickly. I find that the circumstances provide an acceptable explanation for the delay.
Any action to dispute the dismissal (section 366(2)(b))
 According to the Applicant after termination he had taken steps to apologise.
 The respondent put that even if that occurred, there is no evidence that the Applicant sought to challenge the dismissal with the Respondent. The Respondent was unaware of what the Applicant was doing after January 2010. It was not until late March 2010 that it became aware of the Applicant’s position including that the challenge was allegedly based on discriminatory grounds.
 I find that given that his action is based on allegedly discriminatory grounds, the Applicant took no steps to challenge his dismissal other than by lodging this application.
Prejudice to the employer (section 366(2)(c))
 The Applicant submitted that the delay was brief and it should not prejudice the respondent in presenting its case.
 The respondent put that it would be prejudiced by an extension of time being granted.
 I approach this consideration by asking how is the Respondent prejudiced by having to meet the Applicant’s case on 25 March 2010 as compared to if it had had to meet the case on about 20 March 2010. I find that any prejudice would be minimal.
The merits of the application (section 366(2)(d))
 The Applicant put that the reason given by the Respondent was that the Applicant had sworn to an employee of the Respondent in a telephone conversation. The action of dismissal was out of proportion to the transgression. There are strong inference that the real cause have been for prohibited reasons.
 The respondent replied that the Applicant’s conduct was inappropriate and unacceptable. The Applicant had told a senior employee of the Respondent “to go and get f----d”. This misconduct represents a valid reason for dismissal. It was also the only reason for termination. It disputed any alleged unlawful reasons for dismissal.
 In the absence of any more detailed submissions and evidence, I am able to find that the Applicant’s case cannot be said to be without merit.
Fairness as between the Applicant and other persons in like position (section 366(2)(e))
 This is not a relevant consideration in these circumstances.
 I have taken all those considerations into account in order to determine whether there are exceptional circumstances that would justify an extension of time.
 Some findings are adverse to the Applicant (such as the application based on prohibited reasons coming out of the blue) while others are almost neutral (the merits of the case). However, the explanation for the delay is persuasive.
I think that those circumstances go to establishing exceptional circumstances as to why the Applicant should be allowed the additional time for filing of the application.
 For those reasons time is extended for the filing of the application until 25 March 2010. An order is attached.
 For completeness, I should add that the conciliation had occurred on 16 April 2010. It was not successful. I also attach a certificate pursuant to section 369.
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