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Fair Work Act 2009
s.394—Unfair dismissal
Glyn Roberts
v
Westech IT Solutions Pty Ltd
(U2014/1600)
SENIOR DEPUTY PRESIDENT
O’CALLAGHAN ADELAIDE, 26 JUNE 2014
Application for relief from unfair dismissal - extension of time granted.
[1] On 23 June 2014 I advised the parties to this matter that the time for lodgement of this
application would be extended pursuant to s.394(2)(b) of the Fair Work Act 2009 (the FW
Act). These reasons reflect the background and reasons for that decision.
[2] On 6 May 2014 Mr Roberts lodged an application pursuant to s.394 of the FW Act,
through which he sought relief in relation to the termination of his employment with Westech
IT Solutions Pty Ltd (Westech). In his application Mr Roberts advised that his dismissal took
effect on 24 March 2014. He advised that the Fair Work Commission (FWC) should take into
account, the following information in considering whether to accept his application out of
time.
“I have tried to contact Fair Work via phone several times but keep getting endless
messages telling me to go to the fair work ombudsman and when IU go to the fair
work ombudsman I get told to go to fair work Australia so I have given up and am
lodging via this form.
I am also having difficulty coping at the moment as I am being treated for depression
which make it hard for me to get things done.” 1 (sic)
[3] The application was referred to me for consideration. On 19 May 2014 my Associate
advised the respondent of the application and advised both parties that it appeared that the
application had been lodged outside of the legislated 21 day time frame. The parties were
provided with substantial background information relative to the application and extension of
time issue. This advice informed the parties that the extension of time issue would be
considered through a telephone conference on 13 June 2014. Mr Roberts was required to
provide a witness statement and a copy of any document relied upon, by 6 June 2014. At the
request of Westech and by agreement with the parties the telephone conference was
rescheduled to 23 June 2014.
[2014] FWC 4226
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 4226
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[4] An Employer’s Response (Form F3) to the application was received on 29 May 2014.
That response confirmed that Westech objected to an extension of time and objected to the
application proceeding on the basis that it was a small business and the termination of Mr
Roberts’ employment was consistent with the Small Business Fair Dismissal Code.
[5] Mr Roberts provided a substantial quantity of material to the Fair Work Commission
(FWC) and to Westech. This material went to why he considered that he was unfairly
dismissed. It addressed the reasons for the delay in lodging the application in the following
terms:
“I have been asked to show just cause why I failed to lodge my claim for unfair
dismissal within the prescribed 21 days.
My reasons are that
(a) I wasn’t actually aware that I needed to so until I attempted to lodge my claim
(and I’m aware that ignorance of the law is not really a good excuse).
(b) I have been suffering from clinical depression for a number of years and I was
overwhelmed by being dismissed and had a lot of difficulty getting over this
and getting to a point where I could think and act clearly.
(c) I did attempt to start the proceedings earlier but when I rang Fair Work
Australia I was given the run around by the phone system which took ms some
time to navigate around. I didn’t seem to be able to get to actually TALK to
someone which is what I felt I needed to do. A number of times the phone
messages told me that I couldn’t get any advice or help with an unfair
dismissal case from the Fair Work Ombudsman and was given a similar phone
run around and was eventually told by the phone system that if I wanted to
ldoge an unfair dismissal application I needed to do it with the Fair Work
Commission. I made a number of attempts to try to navigate through this maze
on a number of days but seemed doomed to never actually get to talk to a
person. I found THIS experience also unnerving, stressful, frustrating and
difficult to cope with.
I have attached a letter from my doctor confirming that I am suffering from
depression. I am currently (and have been for some time) taking 1 tablet a day of a
Seratonin re-uptake inhibitor medication to ease my depression. In the past four years I
have attempted to reduce the dose to half a tablet a day several times but after a few
weeks I have had panic attacks after experiencing a stressful event (such as being
dismissed) and have had to go back to taking a full dose. (Each time I have attempted
to reduce my dosage I have done so after consulting with my doctor).”
[6] The extension of time issue was considered through a telephone conference on 23 June
2014. A sound file record of this conference was kept. Mr Roberts participated in this
conference. Westech was represented by Ms Sexton of Business SA.
[7] The information provided to the parties included a copy of s.394 and advised of the
factors I am required to take into account in considering this matter.
[2014] FWC 4226
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[8] Section 394 states:
“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.
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.
(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.”
[9] In terms of s.394(2) I am satisfied that the application was made outside of the
specified 21 day time limit. The application was lodged some 22 days outside of the 21 day
time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I
have considered whether Mr Roberts’ circumstances can be regarded as exceptional for the
purposes of this subsection.
[10] The information Mr Roberts has provided establishes, to my satisfaction, that the
primary reason for the delay related to his depression. The advice provided by his doctor and
the medication advice confirms this. It may well be the case that Mr Roberts was not aware of
the time limit for the lodgement of an application and that he had some difficulty in
contacting the Fair Work Commission (FWC). However, I have concluded that whilst both of
these factors would not generally support an extension of time, in these circumstances, where
[2014] FWC 4226
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Mr Roberts has established a depressive illness, that illness impacted on his ability to pursue
this application and hence supports the grant of an extension of time.
[11] In reaching this conclusion I have noted that there is no dispute that Mr Roberts
became aware of the termination of his employment on 23 March 2014, which was the day on
which that termination took effect.
[12] Apart from the lodgement of this application, Mr Roberts did not take action to dispute
the termination of his employment. Whilst this would generally be a factor which mitigates
against an extension of time, I am satisfied that Mr Roberts’ depressive illness is a relevant
consideration in this respect.
[13] Notwithstanding that Westech do not contend that an extension of time would
prejudice its position, I have not relied upon the absence of prejudice in deciding to extend the
time for lodgement of the application.
[14] In terms of the merits of the application, I have noted that the parties both agreed that,
at the relevant time, Westech was a small business for the purposes of s.398 of the FW Act. If
the matter is not resolved through conciliation, this issue will need to be determined
consistent with s.396. The information presently before me does not enable a conclusion
about the merits of Mr Roberts’ application and I have regarded this issue as a neutral factor
in the consideration of the extension of time issue.
[15] Considerations of fairness relative to persons in similar circumstances to Mr Roberts’
support an extension of time on what are fundamentally, medically sustained grounds.
Conclusion
[16] For the reasons I have set out above, Mr Roberts’ circumstances warrant an extension
of time. I regard those circumstances as exceptional for the purposes of s.394(3). The request
for an extension of time is granted and, accordingly, the application will be referred for
conciliation. An Order (PR552424) reflecting this decision will be issued.
SENIOR DEPUTY PRESIDENT
Appearances (by telephone):
G Roberts on his own behalf.
E Sexton of Business SA representing the respondent.
THE FAIR WORK AUSTRALIA MMISSION THE SEAA
[2014] FWC 4226
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Hearing (Conference) Details:
2014.
Adelaide:
June 23.
Printed by authority of the Commonwealth Government Printer
Price code C, PR552423
1 Form F2, para 1.4
