Aydin Demir v Celturan Pty Ltd T/A Mobile Laptops & Notebooks
[2012] FWA 9745
•21 NOVEMBER 2012
[2012] FWA 9745 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aydin Demir
v
Celturan Pty Ltd T/A Mobile Laptops & Notebooks
(U2012/13092)
COMMISSIONER BISSETT | MELBOURNE, 21 NOVEMBER 2012 |
Application for unfair dismissal remedy - application for an extension of time.
[1] Mr Demir (the Applicant) has made an application for relief from unfair dismissal. The application was lodged with Fair Work Australia on 10 September 2012.
[2] Celturan Pty Ltd T/A Mobile Laptops and Notebooks (the Respondent) objects to the application on the grounds that it was lodged outside the time limit imposed by the Fair Work Act 2009 (the Act).
[3] The Applicant seeks an extension of time within which to file his application.
[4] The Respondent initially raised a number of additional jurisdictional objections to the application. Monaco Lawyers, for the Respondent, indicated by email on 30 October 2012 that the Respondent no longer intended to pursue these objections nor its application for security of costs.
[5] The Applicant did not attend the jurisdictional hearing but was represented by his father. The Respondent was represented, with permission, by Mr Bromley. The Applicant’s father and Mr Bromley indicated that they were content to proceed without the presence of the Applicant.
Background
[6] The Applicant was employed by the Respondent from about mid 2010 until June 2012.
[7] On 19 April 2012 the Applicant was issued with a formal warning with respect to his performance.
[8] On 17 May 2012 the Applicant was issued with a second formal warning. At the time he was given some specific timelines for tasks to be completed, lunch breaks to be taken etc.
[9] On 30 May 2012 the Applicant was issued with a ‘third and final official warning for failing to complete set tasks in an appropriate and timely manner’. The warning letter said:
A further set of recommendations will be provided to you by Thursday the 31st May 2012 for which you will have 2 weeks to show improvement and comply with, by completing set tasks in an appropriate and timely manner.
Your review day to monitor your performance is set for Thursday the 14th June 2012, which is two weeks from tomorrow.
We require compliance with your ability to complete set tasks in an appropriate and timely manner by this date.
Failure to comply and address this issue of not completing set tasks in an appropriate and timely manner will result in the termination of your employment by 5pm, Thursday the 14th June 2012. [sic] 1
[10] On 12 June 2012 Mr Jaan Elturan of the Respondent called the Applicant into a meeting at about 11.00am. There are differing submissions as to what occurred at this meeting.
[11] The Applicant’s material states that Mr Elturan told the Applicant he obviously did not know how to follow instructions, that the review period referred to in the 30 May warning letter was over, that he would be paid out the remainder of the review period, his sick and annual leave and he should pack up his things and leave. The Applicant says that he rang his parents after leaving the premises and was told to return and get a ‘termination letter’ so he could go to Centrelink. He says he returned and requested a termination letter to which Mr Elturan replied that the third warning letter stated he had been terminated. 2
[12] Mr Elturan says he was concerned that the discussion with the Applicant with respect to his performance review was becoming confrontational and sent him home. He then sent an email to the Applicant at 12.24pm that day (12 June) in which he stated:
I would like to reaffirm that every opportunity be provided to you for you to maintain your employment and that the courtesy be provided to you for you to stay and complete your review period with MLN. I would like to ensure that you understand you are welcome back to complete your review period and that every effort will be made to provide you with the support you may need if you decide to do so. 3
[13] At 5.25pm the Applicant responded with a lengthy email to Mr Elturan. That email did not directly address the invitation in Mr Elturan’s email to return to work and complete the review even though the Applicant received the letter. This is clear as the Applicant started his email with the heading ‘I am confused by your attached letter’. 4 In his email the Applicant said that Mr Elturan told him that he (the Applicant) did not work at the store anymore. The Applicant requested in the email that:
- he be paid until 22 June 2012;
- he be back paid against the ‘computer technician award’;
- his super be correctly paid;
- he be provided with payslips;
- he be provided with a letter of reference. 5
[14] The Applicant also indicated in his email that, depending on the response of the Respondent he would be a making an application to the Australian Taxation Office, WorkSafe Victoria, Fair Work Australia, the Fair Work Ombudsman, the Victorian Equal Opportunity and Human Rights Commission and/or the Australian Human Rights Commission. 6
[15] On 13 June the Applicant’s father emailed Mr Elturan and said that ‘Aydin does not want to come back & work for you nor your company after the way you kicked him out...’ 7
[16] On 14 June 2012 the Applicant received an email from Dean, the West Melbourne store manager, apparently responding to a number of matters raised in the Applicant’s email to Mr Elturan on 12 June 2012. 8 The Applicant responded to this email on 15 June 2012 seeking clarification on a number of matters and again asking for his wages, payslips, superannuation and termination letter so that he ‘can apply to centrelink & pay [his] bills’.9 Some time later that day or the next day Dean responded to this email and, on the matter of the termination letter, said:
Your 3rd and final written warning that you have signed clearly states what is to happen to your employment, you have signed this, you have a copy of it, I will scan and email this to you again. I suggest you read the last paragraph in it again as it used the word termination very clearly. You should also refer to the letter offering you the courtesy to complete your review period that you have now declined. [sic] 10
[17] On 13 and 14 June 2012 the Applicant sent a further two emails to the Respondent stating that he had not yet had a reply to his email of 12 April 2012. 11
[18] On 2 July 2012 the Applicant made an email inquiry to Fair Work Australia quoting a ‘Fair Work Ref No’. A reply was sent to him on 3 July 2012 advising that the reference number appeared to relate to a Fair Work Info Line matter and that he should contact the Fair Work Ombudsman (FWO), detailing both the phone number and email address to do so. The email also stated that Fair Work Australia can assist with matters including unfair dismissals. 12
[19] On or soon after 10 July 2012 the Applicant received a Workplace Complaint Form from the FWO arising from an enquiry to the FWO on 4 July. The Applicant completed the form and signed it on 27 July 2012. In the details of his complaint the Applicant stated ‘UNFAIR DISMISSAL - I was marched out of the office...and refused a certificate of termination for Centrelink. Dismissed after complaining of wages and talking about ombudsman’. 13
[20] The Applicant says that in early to mid August he received a phone call (presumably from the FWO) and was told he had to make an application to ‘another place’. He says he was ‘given specific instructions on how to proceed and then [he] began the application process after [he] rang FairWork Australia office [sic]...’ 14
[21] The Applicant signed an application for unfair dismissal remedy (Form F2) on 31 August 2012. The form was received by Fair Work Australia on 10 September 2012.
The applicable law
[22] The Act states:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA 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 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
Date of dismissal
[23] To determine if the application for relief from unfair dismissal has been lodged within time it is necessary to first determine if the Applicant has been dismissed and, if he was, the date of the dismissal.
[24] I am satisfied that the Applicant was dismissed from his employment. The matter to determine is the date of dismissal and, as is relevant to the matter subject to this decision, when the Applicant became aware that he had been dismissed.
[25] On 12 June 2012 the Applicant was called in for a meeting with Mr Elturan. It is clear that at the time he left the premises that day the Applicant believed that his employment had been terminated. The Applicant must have said as much to his parents 15 as they told him to return and get a termination letter so he could provide it to Centrelink.16 Further, in his email to Mr Elturan later that day he says he was told by Mr Elturan that he did not work there anymore. This suggests that the date of termination of the Applicant’s employment was 12 June 2012. The Applicant’s father also seems to accept that the date of termination of employment was 12 June when, in his email of 13 June, he states that his son does not wish to return.
[26] Whilst Mr Elturan says he invited the Applicant back to work by letter on 12 June 2012 to complete the review period, no-one at the Respondent including Mr Elturan and Mr Dean Gun ever responded to the plethora of emails at the time and told the Applicant that his employment had not been terminated. Instead they responded by saying the third warning letter was the termination letter. 17
[27] I am satisfied that the Applicant’s employment was terminated on 12 June 2012. If this is not correct it is evident by the Workplace Complaint Form completed by the Applicant and signed by him on 27 July 2012 that, at that point in time, the Applicant considered that his employment had been terminated. This would suggest at least that the Applicant was aware that his employment had been terminated on 27 July 2012.
[28] Whilst I consider that the date of termination of the Applicant’s employment was 12 June 2012 I am prepared, out of an abundance of caution, to accept that the Applicant was not fully aware that he had, in fact, been dismissed until around the time he completed the Workplace Complaint Form on 27 July 2012.
Extension of time
[29] On the basis of my finding above with respect to the date of dismissal the application has been made outside the 14 day time limit prescribed by the Act.
[30] In such circumstances the time may be extended if I am satisfied that exceptional circumstances exist. In determining if I am so satisfied I must take into account those matters in s.394(3)(a)-(f) set out above.
The reason for the delay
[31] The Applicant says that he began making immediate inquires as soon as it was clear that Mr Elturan was not serious in wanting him to return and when his attempts for the remainder of the week to determine ‘when & how’ 18 failed to resolve the issue. He says that around this time he was not sure if he had been dismissed.
[32] The Applicant says that in the week following 12 June 2012 he completed an online inquiry form on the Fairwork website. Having received nothing he followed this up by email and, it appears as consequence of the advice received from Fair Work Australia, again contacted the FWO. He subsequently received a Workplace Complaint Form from the FWO around 10 July 2012. He signed this on 27 July 2012. No explanation is given by the Applicant as to the delay of up to17 days between receiving and signing this form.
[33] The Applicant says he received a call in early to mid-August 2012 from the FWO (it can be reasonably assumed) advising him that it did not deal with unfair dismissal matters. He consequently rang Fair Work Australia where he was ‘given specific instructions on how to proceed’. If it is accepted that the Applicant received the advice on 15 August (being mid-August) there is no explanation as to why he did not sign the application to Fair Work Australia until 31 August 2012 and still further, no explanation is offered as to why the application was not received by FWA until 10 September 2012 (nothing was put suggesting a delay in postal services). When specifically questioned on this delay the Applicant’s father could give no reason as to the delay.
[34] The Respondent says that the Applicant is required to provide some credible explanation for the total period of the delay in making the application for unfair dismissal. 19 The Applicant has provided no credible explanation:
- as to why he did not lodge an application with FWA when he knew of the existence of FWA;
- of what, if anything, the lawyer engaged by him told him;
- for the failure to lodge a complaint with FWO from 10 July to 27 July 2012;
- as to why he ignored the warning on the FWO Workplace Complaint Form to ring the infoline immediately if the complaint involved dismissal;
- for the delay between being advised that he needed to make an application to FWA in early to mid-August and lodging the application on 10 September.
[35] If I accept that the Applicant did not become fully aware that his employment had been terminated until he completed the Workplace Complaint Form on 27 July 2012, for his application to be made within time it should have been made by 10 August 2012. Further, even if I accept (and it was not put by the Applicant) that he erroneously thought he had made the correct application there is nothing to explain the delay between receiving advice from the FWO that he needed to make the application to Fair Work Australia in around early to mid-August and the receipt of his application by Fair Work Australia on 10 September 2012.
Whether the person first became aware of the dismissal after it had taken effect
[36] Whilst I consider that the Applicant’s employment was terminated on 12 June 2012 I have considered that he may not have become fully aware of the termination of his employment until 27 July 2012.
Any action taken by the person to dispute the dismissal
[37] There is no question that the Applicant, from 12 June 2012, disputed his dismissal. He did it through a series of long emails to Mr Elturan and others and then through a complaint to the FWO and, eventually, this application.
Prejudice to the employer (including prejudice caused by the delay)
[38] It is submitted by the Respondent’s representative that there is no prejudice, save as to costs associated with the proceeding, from any delay.
The merits of the application
[39] Little, if anything, was put as to the merits of the application.
Fairness as between the person and other persons in a similar position.
[40] No submissions were made on this matter.
Conclusion
[41] The Applicant referred me to a decision of Cambridge C in Wemyss v Mission Australia Employment Services 20 in support of his contention that his ignorance of the law is no basis on which to reject his application for being out of time. He makes no submissions as to the relevance of such an argument to this matter where all argument centred on the actual date of the termination of his employment.
[42] Whilst there may be some explanation for delay around June or early July in the Applicant making an application for unfair dismissal to Fair Work Australia he has provided no satisfactory explanation as to why there was a delay from when he received the complaint form from the FWO to when that complaint was lodged and again from when he was advised he needed to make an application to Fair Work Australia and when that application was made. Overall he has given no satisfactory explanation for the totality of the delay between 12 June 2012 and 10 September 2012 when his application for unfair dismissal was received by Fair Work Australia.
[43] In all of the circumstances I am not convinced that any plausible reason has been given for the delay in making the application or in any other matters I must consider that would allow me to find exceptional circumstances exist such that I should extend the time for making the application for unfair dismissal.
[44] The application was made outside the time limit imposed by the Act. I decline to extend that time limit. There is, therefore, no jurisdiction for FWA to hear the application and the application is therefore dismissed. An order to this effect will be issued concurrent to this decision.
COMMISSIONER
Appearances:
A. Demir for the Applicant.
M. Bromley, solicitor, for the Respondent.
Hearing details:
2012.
Melbourne:
November 2.
1 Exhibit R2, attachment C1.
2 Exhibit R2, attachment 6A.
3 Exhibit R2, attachment E.
4 Exhibit R2, attachment 6A.
5 Exhibit R2, attachment 6B.
6 Exhibit R2, attachment 6C.
7 Exhibit R2, attachment F1.
8 Exhibit R2, attachment 3A and 3B.
9 Exhibit R2, attachment 4A and 4B.
10 Exhibit R2, attachment 5B.
11 Exhibit R2, attachment 7 & 8.
12 Exhibit R2, attachment 10.
13 Exhibit R2, attachment 11C.
14 Exhibit A1, paragraph 2.
15 Transcript PN78.
16 Exhibit R2, attachment 6A.
17 Exhibit R2, attachment 6A, attachment 3A, attachment 5B.
18 Exhibit A1, paragraph 2
19 See Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers [2010] FWAFB 7251, [27].
20 [2010] FWA 1798.
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