[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

[2014] FWC 479

FAIR WORK COMMISSION

DECISION

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 2013 1. 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 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 entitlements 6. 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 entitlements 12.

[9] On 23 May 2013 the Applicant lodged a “Workplace Complaint Form” (Complaint) with the Fair Work Ombudsman 13. 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 Infoline 16. 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 application 20 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 .

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 period 23 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.

[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 rare 25. 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 circumstance 26. 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 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 time 27. 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 Ltd 28 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. 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.

DEPUTY PRESIDENT

Appearances:

M.McKenney of Counsel for the Applicant

S. Keating of Counsel for the Respondent

Hearing details:

2014.

Melbourne

17 January