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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Paroz
v
Cielo Publishing Pty Ltd
(U2016/3207)
COMMISSIONER ROE MELBOURNE, 5 AUGUST 2016
Application for relief from unfair dismissal – extension of time.
[1] Mr Paroz was employed by Cielo Publishing from September 2014 until his dismissal
on 2 May 2016. Mr Paroz gave notice to his employer on 18 April 2016 effective from 2 May
2016. Mr Paroz says that he was forced to resign because of the repeated failure of the
employer to pay his entitlements properly and on time.
[2] Mr Paroz says that he had been in regular communication with the Fair Work
Ombudsman (the Ombudsman) since March 2016 concerning late or non-payment of his
entitlements and misleading representations. He says that he attempted to maintain good
relations with his employer during the period following the dismissal because he was
concerned that his entitlements would not be paid. The employer made promises to rectify the
situation and this delayed the resolution of matters for 27 days after the termination.
Communications with the employer on this issue occurred during the period from 17 May
2016 until 30 May 2016. Mr Paroz says that he then continued his contact with the Fair Work
Ombudsman. On 30 June 2016 he raised the issue of unfair dismissal with the Ombudsman
and they advised him to contact the Fair Work Commission. He then studied the Fair Work
website information and decided to make an application which he then did quickly on 4 July
2016.
[3] Mr Paroz made his application on 4 July 2016. The application is therefore 41 days
late.
[4] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for
the application if I am 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.
[2016] FWC 5283
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 5283
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The reasons for delay
[5] The reason given for the delay is that Mr Paroz was attempting to maintain good
relations with his employer whilst he resolved the issue of outstanding wages and
entitlements. Given the history of non-payment and late payment Mr Paroz says that he had
good reason to be concerned. Mr Paroz says that the period between the dismissal and 30 May
2016 is explained by this issue. The first few weeks he was waiting for payment and then in
the next few weeks he was negotiating about the payment. He says that this is what the Fair
Work Ombudsman advised him to do.
[6] However, this issue does not explain the period of the delay between 30 May 2016 and
4 July 2016. During that period Mr Paroz says that he was dealing with the Fair Work
Ombudsman in respect to his entitlement concerns. Mr Paroz provided a log of interactions
between himself and the Fair Work Ombudsman.1 He contacted the Ombudsman on 30 May
2016 and lodged a complaint. He contacted the Ombudsman again on 8 June as he had not
received a response from them. He was advised that he would be contacted soon. Then on 30
June 2016 the Ombudsman contacted him to discuss his underpayment complaint. It was only
on 30 June 2016 that the Ombudsman suggested that he should contact the Fair Work
Commission if he was concerned about constructive dismissal. The log of interactions with
the Fair Work Ombudsman shows that this was the first time that Mr Paroz raised the issue of
his dismissal and the possibility of contesting its validity. Mr Paroz confirmed that prior to 30
June 2016 he did not contest the dismissal with the Fair Work Ombudsman but was purely
focused on the underpayment issues. Mr Paroz says that he contacted the Fair Work
Commission that day and then he contacted Job Watch for assistance and lodged his
application on 4 July 2016.
[7] There is no explanation for the period of delay between 30 May 2016 and 4 July 2016
which provides the basis for a finding of exceptional circumstance. I accept that Mr Paroz was
unaware of the possibility of lodging an unfair dismissal application before 30 June 2016, but
that lack of knowledge or advice is not something which is unusual.
[8] The reason for delay does not support a finding of exceptional circumstances.
The other factors
[9] It is not suggested that Mr Paroz was aware of the dismissal after it had taken effect.
Mr Paroz resigned and gave two weeks’ notice. The period of notice means that Mr Paroz had
additional time to prepare to make an application. In the circumstances of this case this factor
stands against a finding of exceptional circumstance.
[10] Mr Paroz in his submission states that he did not contest the proposed dismissal at the
time it occurred. He did not contest the dismissal at any time between the termination and the
making of the application. Particularly given the length of the delay in this case I consider that
this is a factor which stands against the finding of exceptional circumstances.
[11] The application was 41 days late. This is a substantial period. However, I am not
satisfied that there is significant prejudice to the employer. This is a neutral factor.
1 Exhibit P1.
[2016] FWC 5283
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[12] I have not had the opportunity to consider all of the evidence in this case. However, on
the evidence and submissions of Mr Paroz it appears that the essential matter in this case will
be whether or not Mr Paroz was forced to resign because of the actions of the employer. I can
understand Mr Paroz’s distress at the failure of the employer to pay him properly and that
failure could frustrate the employment relationship and leave Mr Paroz with no alternative but
to resign. Mr Paroz’s case is not hopeless. I cannot reach further conclusions in respect to the
merits as I have not heard all the evidence, including evidence from the employer. The merits
of the case are a neutral factor in the circumstances of this case.
[13] This case depends upon its own particular facts. I do not consider that my decision
would be disharmonious with other decisions about related matters. I do not consider there is
any issue of fairness as between the person and other persons in a similar position.
Conclusion
[14] Considering all of the factors in Section 394 leads me to conclude that there are no
exceptional circumstances which justify an extension of time in this case. The application is
therefore dismissed. An order is issued separately.
COMMISSIONER
Appearances:
Mr M Paroz represented himself.
No appearance for the Respondent.
Hearing details:
2016
Melbourne
July 29
Printed by authority of the Commonwealth Government Printer
Price code A, PR583636
IF THE FAIR WORK THE COMMISSION ADIYLALIA us TA NOISS
