DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Thorne
v
Woorarra Dairy
(U2016/10279)

Application for relief from unfair dismissal – extension of time.

[1] On 15 August 2016 Mr Jake Thorne (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr. Thorne was summarily dismissed by letter dated 15 July 2016 for the reason of his alleged ‘unsafe behaviour and then physical assault towards your Manager on 15 July 2016’.

[2] The Woorara Dairy (the employer) advised on 13 October 2016 that the Fair Work Commission (the FWC) ‘has jurisdiction in this matter’. It then opposed an extension of time being granted when the applicant put a written submission seeking to justify an extension of time.

[3] I have taken account of all submissions and evidence. A hearing was held on 30 November 2016.

[4] As the application was more than 21 days after the dismissal on 15 July 2016, and in the order of ten days out of time, the application must be dismissed unless an extension of time is granted. The applicant seeks an extension of time.

Decision

[5] Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

The reason for the delay

[6] The applicant provides little reason for the delay during the period after his hospitalisation, namely between 9 and 14 August 2016. The applicant has some form of ongoing medical condition, described in various ways including in his witness statement. However he was discharged from hospital on 9 August and was able to look after himself at home. He describes his condition in hospital as ‘depressed, sick or unwell’, and after his discharge there is no such clear claim although there is an ongoing condition which is variously described. There is on its face no satisfactory reason for the delay during this period after hospitalisation. I note that in putting oral submissions the applicant sought to justify this period by reference to the period of hospitalisation. However, the hospitalisation may count for a part but not all of this period. Either the whole or large part of the period after hospitalisation is not accounted for on the material before me. This counts against the application. He could have filed an application at any time during that period after hospitalisation.

Aware of dismissal

[7] The applicant claims that he was aware of the dismissal on the 16 July, the day after his dismissal. This is a neutral factor.

Disputing the dismissal

[8] The applicant does not claim that he disputed the dismissal until the application was filed. This counts against the application.

Prejudice to employer

[9] Both sides agree that there was no prejudice, and I agree.

Merits of application

[10] The applicant does not directly contradict the employer claims of an assault by the applicant on his manager. This is a serious matter. However in the circumstances this is a neutral consideration because it is unclear what the evidence from the applicant will be.

Fairness between persons

[11] This is a neutral factor as there are no persons in a similar position to the applicant.

Overall exceptional circumstances

[12] The authority in Nulty v. Blue Star Group Pty Ltd 1 has often been quoted to explain the terms of s.394, and I adopt the observations in that decision. In my view there are no exceptional circumstances warranting an extension of time.

[13] I refuse to order an extension of time. The matter is dismissed. An order to that effect is contained in PR587909.

DEPUTY PRESIDENT

Final written submissions:

27 October 2016 for the Applicant.

11 November 2016 for the Respondent.

 1   (2011) 203 IR 1

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