Bejan Mojdhe v Oztran Aust Pty Limited

[2015] FWC 1407

[2015] FWC 1407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bejan Mojdhe
v
Oztran Aust Pty Limited
(U2014/16422)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Bejan Mojdhe alleged that the termination of his employment by Oztran Aust Pty Limited was unfair. Oztran alleged that Mr Mojdhe was not dismissed.

[2] Mr Mojdhe’s employment with Oztran ended on 9 November 2014 and he did not file his application until 17 December 2014. Mr Mojdhe was required to file his application by 1 December 2014. 1 The unfair dismissal application was therefore not made within 21 days of the date of the dismissal

[3] The application was listed for an extension of time telephone conference.

[4] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria:

(a) the reason for the delay;

[5] Mr Mojdhe’s first language is not English. Mr Mojdhe advised that he needed a Persian - Farsi language interpreter. He said because of his lack of English he was unaware of his right to make a claim. He said he was not able to make a claim until a friend assisted him with his application. Mr Mojdhe’s application has a notation that it was written by another person on Mr Mojdhe’s behalf but using Mr Mojdhe’s own words.

[6] The application was signed on 12 December 2014 but it was not received until 17 December 2014. Mr Mojdhe said he posted the application by registered post on 12 December 2014.

[7] Mr Mojdhe lived in Port Hedland.

[8] Mr Mojdhe explained that his first priority when losing his job was to find another job. In addition he had to find new accommodation. He said he didn’t know what to do and his lack of English hindered him.

[9] He said that he sought assistance from people he knew but no-one was able to help him. He said he attempted to phone lawyers and Fair Work but he was put on hold for ages and his phone ran out of charge or his credit ran out. He said that about a week before he posted the form he ran into an old friend who told him about unfair dismissal and helped him lodge the form. Even accepting that he posted the application on 12 December 2014 when he sought the assistance of his friend, his application was already late.

[10] Oztran did not challenge Mr Mojdhe’s evidence.

[11] Oztran relied upon the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 to support its submission that the reasons for the delay are not out of the ordinary, unusual, special or uncommon.

[12] It was submitted that, if as Mr Mojdhe said, he sought advice then he would have been told of the 21 day time limit.

[13] It was submitted that lack of English 3 and ignorance of the 21 day time limit4 do not support a finding that there are exceptional circumstances.

[14] I do not agree with this submission. While I accept that there are many persons who have difficulty reading and understanding English that does not mean that a lack of English combined with geographical isolation and pressing personal circumstances, does not together constitute exceptional circumstances.

[15] While I am surprised that it took the registered letter five days to be received at the Commission, it was Mr Mojdhe’s evidence that he posted the letter the day it was signed. If that was the case it was not unreasonable for him to assume that the letter would be received the next business day.

(b) whether the person first became aware of the dismissal after it had taken effect;

[16] Mr Mojdhe was aware of what happened on 9 November 2014 and had the full 21 days to lodge the application. This weighs against the granting of an extension of time.

(c) any action taken by the person to dispute the dismissal;

[17] Mr Mojdhe took no steps to dispute his dismissal. This weighs against the granting of an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[18] Apart from the costs, there were no submissions that there would be any prejudice to Oztran. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[19] Oztran submitted that Mr Mojdhe was not dismissed and therefore his claim has no prospects of success. Mr Mojdhe stated in his application that after an altercation with his supervisor he walked out. Mr Mojdhe said he was dismissed.

[20] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. Therefore I am unable to conclude that Mr Mojdhe’s claim has no prospects of success. This weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[21] No submissions were made on this criterion and hence I will treat it as a neutral criterion.

Conclusion

[22] I accept that Mr Mojdhe had a reasonable explanation for the delay. Having regard to the other criteria, I consider that there are exceptional circumstances warranting the granting of an extension of time. As such I am prepared to exercise my discretion to extend time for the lodgement of his application. An order to that effect will be issued and the application will be referred to conciliation.

DEPUTY PRESIDENT

 1   The 21st day fell on Sunday 30 November 2014 and hence he was able to file it on the next business day being 1 December 2014.

 2   [2011] FWAFB 975

 3   Truong v Elawar & Sons Mechanical Repairs [2012] FWA 9709 at [14]

 4   Nulty op cit at [13]

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