[2012] FWA 8205

[2012] FWA 8205

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Gayachandra Kuruppuarachchige
v
Curry leaf Sri Lanken Restaurant Pty Ltd
(C2012/4925)

COMMISSIONER DEEGAN

CANBERRA, 20 SEPTEMBER 2012

Alleged contraventions involving dismissal, jurisdictional objection, application filed outside prescribed time limit, no exceptional circumstances, application dismissed.

[1] On 15 August 2012 Mr Gayachandra Kuruppuarachchige (the applicant) lodged an application pursuant to s365 of the Fair Work Act 2009 (the Act) alleging a contravention involving dismissal by his employer, the Curry Leaf Sri Lankan Restaurant (the respondent).

[2] The respondent filed a response to the application on 22 August 2012. In the response the employer objected to Fair Work Australia’s jurisdiction to deal with the matter on the basis that it had been lodged outside the prescribed time limit in s.366(1)(a) of the Act. With the response the employer provided a letter that was sent to the applicant, dated 30 November 2010, which terminated his employment with effect from that day. As the applicant was required to file his application by 31 January 2011 (29 January was a Saturday), the application filed in this matter on 15 August 2012 was filed 562 days after the last date allowed under section 366 of the Act.

[3] A hearing was conducted on 20 September 2012 in order to determine whether, in accordance with s.366 (2) of the Act, additional time should be allowed for the filing of the application.

[4] Section 366 of the Act provides as follows:

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[5] At the hearing the applicant was assisted by a Sinhalese interpreter. There was no appearance for the respondent, who claimed to have been unaware of the hearing. Given the difficulties that had been encountered in arranging for the services of the interpreter I decided to hear the applicant’s explanation for the delay in filing despite the absence of the respondent. I determined that if the applicant’s explanation was such that further time might be allowed for the filing of the application the Respondent would be provided with the transcript, asked to respond and a further hearing arranged if necessary.

[6] With the assistance of the interpreter, the nature of the proceedings and the requirements of s.366 of the Act were explained to the applicant. He was then asked to address those matters set out in s366 (2).

[7] The applicant gave a number of reasons for the delay in filing application;

he was in significant financial and mental distress as a consequence of having his employment terminated;

he was working in Australia on a s.457 visa and was only allowed 28 days following the termination of his employment to find another sponsor;

he had significant debts and had been unable to repay them;

he had been unable to afford the filing fee to lodge the application; and

he had been unable to find alternative employment until mid-2011.

[8] When asked what action he had taken to dispute the termination of his employment the applicant stated that he had made two telephone calls to his employer, one shortly after the dismissal and one about 4 months prior to the hearing.

[9] In essence, it was the applicant’s case that his mental and financial state was such that he was not in a position to file the application until August 2012.

[10] I make no finding as to whether the employer would suffer prejudice from the delay in filing the application.

[11] On the basis of the detail provided in the application and the response lodged by the employer I am unable to conclude that the application is totally without merit.

[12] I make no finding as to fairness as between the applicant and others in a like position.

[13] I am prepared to accept that the applicant’s position following the termination of his employment was difficult. No doubt he suffered financially. I am prepared to accept that the termination had an effect on his mental state. I am not prepared to accept, however, that this condition existed for almost two years following the termination. The applicant gained new employment in mid-2011. In the absence of any compelling medical evidence I do not accept that his mental condition affected his ability to take the necessary action to lodge the application from that time.

[14] I do not accept that the applicant’s limited English or lack of knowledge of the time limit for lodgement renders his situation exceptional. Many other applicants have limited English and are unaware of the requirements of the legislation. The applicant’s lack of English might provide a reason for a short delay in filing but is not such an exceptional circumstance that a further period of eighteen months should be allowed for the filing of the application.

[15] As I am not satisfied that there are exceptional circumstances I refuse to allow an additional period of time for the filing of the application. The application is dismissed.

COMMISSIONER

Appearances:

The applicant in person.

Hearing details:

2012.

Canberra:

September, 20