[2014] FWC 479
The attached document replaces the document previously issued with the above code on 20
January 2014.
The reference at footnote 28 is corrected.
Abbygayle Lang
Associate to Deputy President Gostencnik
Dated 3 April 2014
1
Fair Work Act 2009
s.394—Unfair dismissal
Cem Ozsoy
v
Monstamac Industries Pty Ltd
(U2013/10211)
DEPUTY PRESIDENT
GOSTENCNIK
MELBOURNE, 20 JANUARY 2014
Application for relief from unfair dismissal.
Introduction
[1] Monstamac Industries Pty Ltd (Respondent) summarily dismissed Mr Cem Henry
Ozsoy (Applicant) from his employment with the Respondent on 13 May 20131. The
Respondent alleged that various conduct said to have been engaged in by the Applicant
amounted to serious misconduct warranting summary dismissal2. The Respondent now also
alleges that the Applicant engaged in theft to justify its decision to dismiss the Applicant.
[2] The Applicant had, until the termination of employment, being employed by the
Respondent since 6 August 2012. His job title was “IT help desk support consultant”3. The
Applicant lodged an application for an unfair dismissal remedy on 4 June 2013 which was 22
days after the dismissal took effect. In order for his unfair dismissal remedy application to
proceed, he requires an extension of time allowing him to lodge his application outside of the
time prescribed by section 394 (2) of the Fair Work Act 2009 (Act).
[3] I have decided, after taking into account the matters set out in section 394 (3) of the
Act, not to allow the Applicant a further period within which to lodge his application because
I am not satisfied that there are exceptional circumstances to warrant the exercise of my
discretion. The application for an unfair dismissal remedy will therefore be dismissed and the
scheduled hearing dates commencing 22 January 2014 will be vacated. These are my reasons
for that decision.
Background and factual context
[4] The Applicant was advised of the termination of his employment by letter dated 13
May 2013 which was delivered to him on that day. The Applicant therefore became aware of
1 Exhibit A1
2 Ibid at page 2
3 Transcript PN 205
[2014] FWC 479
DECISION
AUSTRALIA FairWork Commission
[2014] FWC 479
2
his dismissal on the date it took effect. The letter of termination advised the Applicant, inter
alia, that “[A]fter advice from the office of the Fair Work Ombudsman, we consider that your
actions constituted serious misconduct warranting summary dismissal”4.
[5] The Applicant gave evidence that on 13 May 2013, after receiving the termination
letter, he accessed the website of the Fair Work Ombudsman to conduct:
“ . . . research in regard to the misconduct that was claimed on the termination letter and to find out
whether my termination and the purposes of my termination led to misconduct. That’s the reason why I
went onto the web site and then I found out - and spoke to them actually, and I do have a reference
number indicated in the Fair Work Ombudsman’s work complaint form - that it wasn’t serious
misconduct. The information they provided me was that I should be entitled for a week’s notice, plus
any expenses done on my behalf.”5
[6] The Applicant’s purpose for consulting the Fair Work Ombudsman’s website was to
make enquiries about his legal entitlements6. The Applicant also spoke to a person at the
office of the Fair Work Ombudsman but could not remember the date on which that occurred
except that it may have been before 23 May 20137, being the date on which the Applicant
lodged a complaint with the Fair Work Ombudsman8.
[7] As to his conversation with the office of the Fair Work Ombudsman, the Applicant
gave the following evidence:
“When you spoke to the Fair Work Ombudsman, you told them that you’d been dismissed?---Yes. I told
them that I’d been dismissed.
And you told the ombudsman that you hadn’t been paid notice?---Yes.
And you told the ombudsman that there were some outstanding expenses?
---Correct.
And you asked the ombudsman what to do about that, didn’t you?---Correct.
The ombudsman advised you to make a complaint?---No, they didn’t advise me to make a complaint.”9
. . .
“Coming back to your telephone call with the Fair Work Ombudsman, you didn’t say to the
ombudsman that you wanted your job back, did you?---No. I didn’t think that was a possibility. I wasn’t
aware I had that entitlement.”10
. . .
“When you contacted the Fair Work Ombudsman, you were advised, weren’t you, that the ombudsman
wasn’t able to give you legal advice?---Yes. They indicated that to me, yes.
So you were aware at all times that the ombudsman wasn’t providing you with legal advice about your
rights and entitlements?---Correct. They indicated that they weren’t able to provide legal advice.”11
[8] The Applicant’s evidence was that apart from discussions with the office of the Fair
Work Ombudsman, he did not seek any other advice about his rights or entitlements12.
4 Ibid
5 Transcript PN 176
6 Transcript PN 180
7 Transcript PN 177 – PN 178
8 See exhibit A 2
9 Transcript PN 181 – PN 185
10 Transcript PN 197
11 Transcript PN 202 – PN 203
12 Transcript PN 201
[2014] FWC 479
3
[9] On 23 May 2013 the Applicant lodged a “Workplace Complaint Form” (Complaint)
with the Fair Work Ombudsman13. It seems clear on the face of the Complaint that the
Applicant was complaining, amongst other things, that his dismissal had been unfair14.
Immediately above the section of the Complaint headed “Details of your complaint” is the
following note:
“IMPORTANT: If your complaint relates to unfair dismissal or termination of your employment
please contact the Fair Work Infoline IMMEDIATELY on 13 13 94.”15 (Emphasis in original)
[10] The Applicant’s evidence was that he did not contact the Fair Work Infoline16. The
Applicant received a written response to the Complaint from the Fair Work Ombudsman on
Friday, 31 May 201317. The written response advised the Applicant that the Complaint was
“out of the jurisdiction and they had referred me to the Fair Work Commission”18. Thereafter
the Applicant took the following steps:
“What did you do once you received that response?---What I did was after the weekend, on the
Monday, I went onto the Fair Work Commission’s web site. I went and obtained the proper information
in regards to lodging a complaint. I downloaded the form, filled out the necessary information. The
following next day, I lodged the application and paid the amount I needed to pay.”19
[11] The Applicant’s evidence was that he was not aware that there was a time limit
attached to the lodgement of an unfair dismissal remedy application20 and he did not recall
seeing any information on the Commission’s website about a time limitation21.
[12] The following information appears on the Commission’s website in the section dealing
with unfair dismissal and is found on the same page as the link to download the application
form appears:
“How long do I have to make an application?
If the dismissal occurred on or before 31 December 2012, the application must be lodged within 14
days of the dismissal taking effect. If the dismissal occurred on or after 1 January 2013, the
application must be lodged within 21 days of the dismissal taking effect.
The Fair Work Commission may accept a late application but only in exceptional circumstances.
Find out more:
Can an application be lodged after the time limit has expired?
Which application form is used?
Applications for an unfair dismissal remedy must be made on a Form F2—Application for unfair
dismissal remedy .
13 Exhibit A2
14 Ibid at page 3
15 Ibid
16 Transcript PN 186 – PN 192
17 Transcript PN 148
18 Ibid
19 Transcript PN 156
20 Transcript PN 157
21 Transcript PN 161 – PN 162
[2014] FWC 479
4
The form is also available from the Fair Work Commission State & Territory offices.
Is there an application fee?
Employees are required to pay an application fee of $65.50. This fee may be waived on the grounds that
its payment would cause serious hardship.
Any application for waiver of the fee should accompany the application form. The fee may also be
refunded if the matter is discontinued prior to any conference or hearing being held before a Fair Work
Commission member.
How do I submit the application form?
Completed forms can be lodged:
by email, facsimile, express post or in person at one of the Fair Work Commission’s State &
Territory offices
electronically through the eFiling service on this site
by telephone (Note: any incomplete application cannot proceed until a complete and signed
application is received, along with either payment or a separate application for waiver of
fee).”22(Emphasis in original)
[13] The same information, apart from a lower filing fee, appeared on the Commission’s
website at the time that the Applicant consulted the website and downloaded the application
form.
[14] After consulting the Commission’s website and downloading the application form on
3 June 2013, the Applicant completed the form and lodged it by email which was received by
the Commission at 5:01 PM on 4 June 2013.
Principles for allowing applications to be lodged outside the prescribed time limit
[15] The Applicant’s dismissal took effect on 13 May 2013. His application for a remedy
should have been made within 21 days after the dismissal took effect, namely by 3 June 2013.
The application was lodged on 4 June 2013 and was therefore one day outside of the time
prescribed. The Commission may allow a further period23 within which an application may be
made. The discretion to allow a further period will only be exercised if the Commission is
first satisfied there are “exceptional circumstances”, taking into account24:
the reason for the delay; and
whether the person first became aware of the dismissal after it had taken effect on:
and
any action taken by the person to dispute the dismissal; and
prejudice to the employer (including prejudice caused by the delay); and
the merits of the application; and
fairness between the person and other persons in a similar position.
22 http://www.fwc.gov.au/index.cfm?pagename=dismissalsclaim
23 Section 394(2) & (3)
24 Section 394(3)
[2014] FWC 479
5
[16] It is clear, from the structure of s.394(3) of the Act that each of these matters must be
taken into account when assessing whether there exist “exceptional circumstances”.
[17] “Exceptional circumstances” are circumstances that are out of the ordinary course,
unusual, special or uncommon but the circumstances need not be unique, unprecedented or
very rare25. Before considering whether to exercise my discretion to allow a further period
within which the application may be made, it is first necessary to determine whether there are
exceptional circumstances.
Reason for the delay
[18] There has not in my view, been advanced any acceptable explanation for the delay.
True it is that the Applicant consulted the office of Fair Work Ombudsman, lodged the
Complaint with that office and may have been led into believing that the Fair Work
Ombudsman had power to deal with his unfair dismissal complaint because of reference to
that body in the letter of termination that he received from the Respondent on 13 May 2013.
However he was disabused of that belief when advised on 31 May 2013 by the office of the
Fair Work Ombudsman that it did not have jurisdiction to deal with the Complaint and
referred him to the Commission. At that stage the Applicant was still within time to lodge his
unfair dismissal remedy application.
[19] The Applicant did not immediately consult the Commission’s website but instead
waited until 3 June 2013 to do so. I accept that the days in between constituted a weekend,
however the Commission’s website is accessible on the weekend and documents can be
lodged by email outside of normal business hours of the Commission. When he consulted the
Commission’s website on 3 June 2013 he downloaded the application form, but did not recall
seeing the note alerting readers to the time limitation attached to the lodgement of such
applications. The Applicant could have lodged his application on 3 June 2013 but did not do
so. Instead the Applicant lodged the application by email shortly after 5 PM on 4 June 2013.
No explanation is given for this delay.
[20] The Applicant was unaware of the time limit that attached to unfair dismissal remedy
applications, but mere ignorance of the statutory time limit is not an exceptional
circumstance26. It is by no mean uncommon for persons who have been dismissed to be
unaware of the statutory remedies that may be available to them or the time limits that govern
access to those remedies. The critical question is what is the Applicant’s explanation for the
delay which led to the lodgement, outside of the prescribed time period of his application?
Apart from being unaware of the time limitation, there is no explanation. Counsel for the
Applicant submitted that once the Applicant became aware that the Commission was the
appropriate body with which to make a complaint about his dismissal he acted promptly. That
may be so but it does not explain the delay. The Applicant became aware that the Commission
was the appropriate body within sufficient time to enable him to lodge his application within
the 21 day period. He did not do so. It is the delay that must be explained, and here there is no
acceptable explanation for the delay.
[21] The fact that the application was lodged only one day late does not take the matter
further. Whether the delay is one day or one year, there must be an acceptable explanation for
25 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at 5
26 Ibid at 6
[2014] FWC 479
6
the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not
provide an explanation nor does it render the circumstances exceptional. The absence of an
acceptable explanation for the delay weighs against the Applicant in this case.
Awareness of the date the dismissal took effect
[22] The Applicant became aware that the dismissal took effect on the day that it took
effect. Consequently he had the full 21 days within which to lodge an application. In the
circumstances this weighs against the Applicant.
Any action taken by the Applicant to dispute the dismissal
[23] I accept that the Applicant took action to dispute the dismissal. This is evident in the
complaint which raises issues about the fairness of his dismissal by the Respondent. This
weighs in favour of the Applicant.
Prejudice to the employer (including prejudice caused by the delay)
[24] The Respondent, properly in my view, accepted that it would not suffer any prejudice
either by reason of the delay or if the Applicant were permitted to make his application
outside the prescribed time period. However the mere absence of prejudice to the Respondent
does not mean it is a sufficient basis to grant an extension of time27. In the circumstances I
consider this consideration to be essentially neutral.
The merits of the application
[25] As I indicated to the parties during the hearing of the extension of time application, as
I had been allocated the substantive matter I have had the opportunity to read the materials
filed by each party. I am satisfied based on that material and accepting that the material has
not been tested by way of cross examination, the application is not without merit. The
allegations made by the Respondent are contested however it is not practical in hearings of
this kind, to conduct a full evidentiary hearing to determine merit. Moreover neither party
sought to lead evidence going to merit. In the circumstances the fact that the Applicant’s
claim is not without merit weighs in favour of the Applicant.
Fairness as between the person and other persons in a like position
[26] The Applicant relied upon the decision of Deputy President McCarthy in Palmer v
RCR Engineering Pty Ltd28 to support the proposition that this factor weighed in favour of the
Applicant, having regard to the similarity between the facts underpinning that decision. I do
not agree. The decision in Palmer is distinguishable in a number of respects. First, Mr Palmer
did not become aware that he was pursuing his claim in the wrong jurisdiction until after the
14 day period which then applied to applications of this kind had expired. The Applicant
became aware that the Fair Work Ombudsman did not have jurisdiction several days before
the time period had elapsed. Secondly, as is apparent from the decision in Palmer, Mr Palmer
sought legal advice after he had lodged his application in the wrong jurisdiction and the
advice given overlooked the fact that he was pursuing his claim in the wrong jurisdiction.
27 See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
28 [2009] FWA 1431
[2014] FWC 479
7
Here there is no suggestion of representative error. The Applicant gave evidence that he did
not seek any other advice other than consulting the Fair Work Ombudsman. Moreover he was
told by the office of the Fair Work Ombudsman that it was not able to give him legal advice29.
That body correctly advised him that it did not have jurisdiction to deal with his unfair
dismissal and correctly referred him to this Commission. It did so within sufficient time that
would have enabled the Applicant to make a valid application.
[27] Thirdly, there was an element of contribution to the delay by Mr Palmer’s employer
because it did not raise objection to the application that had been made in the wrong
jurisdiction until 20 days after that application had been lodged. The objection was raised
after the 14 day period then applicable under the Act had elapsed. Here there is no such
contribution. Even if the reference in the letter of termination to the Fair Work Ombudsman
could be said to have pointed the Applicant in the wrong direction (which I do not accept), the
Applicant had sufficient time after becoming aware that the Fair Work Ombudsman did not
have jurisdiction to deal with his unfair dismissal grievance, to lodge an application within
time and so it cannot be said that the Respondent somehow contributed to or was responsible
for the delay.
[28] Cases of this kind will generally turn on their own facts. The decision in Palmer does
not assist the Applicant. Further I am not aware of any other application currently before the
Commission which might have a bearing on this consideration and I am of the view that this
factor does not assist the Applicant.
Conclusion
[29] The statutory time limitation applicable to the exercise of a person’s right to make an
unfair dismissal remedy application that is in place, is an expression of Parliament’s intention
that rights must be exercised promptly within a particular time so as to bring about certainty.
Time limitations seek to balance one person’s right to bring an action, against another
person’s right to know with certainty that questions about actions that they have taken will be
agitated within a particular period, otherwise that right is lost.
[30] Applications seeking relief from unfair dismissal must be made within 21 days after
the dismissal takes effect. Only in exceptional circumstances should the Commission consider
allowing a further period. Whilst I accept that the application lodged by the Applicant was
late by only one day, that is not to the point. The length of the delay says nothing or very little
about whether there are exceptional circumstances. Weighing all of the matters set out in s
394(3), there is nothing in the evidence before me to establish that there are exceptional
circumstances warranting consideration of the exercise of my discretion to allow a further
period within which the Applicant may lodge an unfair dismissal remedy application.
[31] In the circumstances I do not allow a further period within which the application may
be made. The Applicant’s unfair dismissal remedy application is dismissed and the hearing
dates scheduled for 22, 23 and 24 January 2014 are vacated. An order giving effect to this
decision is issued separately.
29 Transcript PN202-PN203
[2014] FWC 479
8
DEPUTY PRESIDENT
Appearances:
M.McKenney of Counsel for the Applicant
S. Keating of Counsel for the Respondent
Hearing details:
2014.
Melbourne
17 January
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