Bilgihan Gultekin v Queensland Properties Investments Pty Ltd
[2009] FWA 872
•28 OCTOBER 2009
[2009] FWA 872 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Queensland Properties Investments Pty Ltd
(U2009/11540)
COMMISSIONER ROBERTS | SYDNEY, 28 OCTOBER 2009 |
Termination of employment - extension of time.
[1] This decision concerns an application lodged by Mr Gultekin on 25 August 2009 for relief pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of his employment by Queensland Properties Investments Pty Ltd (QPI). An earlier application was lodged by Mr Gultekin on 12 August 2009 pursuant to s.394 of the Fair Work Act 2009 (the FW Act). That application was discontinued on 24 August 2009 when it became apparent to Mr Gultekin that he had filed an application under the incorrect Act.
[2] Mr Gultekin states in his current application that the termination of employment took effect on 5 May 2009. Accordingly, his application was filed some 91 days outside the 21 day time limited prescribed by the Act and therefore requires me to consider whether to grant Mr Gultekin an extension of time for filing. In the unusual circumstances in which Mr Gultekin filed an earlier application under the FW Act on 12 August 2009, as an honest mistake, I will take into account the filing date of 12 August 2009 and base my decision in this matter on a delay of some 78 days rather than the figure of 91 days given above. An extension of time was opposed by QPI which also objected to conciliation before determination of the application to extend time.
[3] Directions were issued on 8 September 2009 for the filing of submissions, witness statements and any supporting documents. The submission process concluded on 23 October 2009. Mr Gultekin filed his material and QPI filed its reply but Mr Gultekin did not avail himself of his right to reply further to QPI’s submissions. Mr Gultekin is represented by Ms J Lysien-Bednarz, solicitor from Mt Druitt & Area Community Legal Centre Inc. and QPI is represented by Ms J Rose, its Human Resources Manager.
[4] I will now proceed to determine the extension of time application on the information provided and applying the relevant legislative provisions.
Legislative Framework
[5] Subsections 643(14) and (15) of the Act provide:
“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.
(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”
[6] The following Note appears under subsection 643(15):
“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”
[7] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 1
"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[8] In Cruz and Australia Post Corporation 2(Cruz), a Full Bench of this Commission said of Brodie-Hanns:
“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 3
Background
[9] Mr Gultekin was employed by QPI as a Storeperson from on or about 19 January 2004 until 5 May 2009. QPI maintains that Mr Gultekin’s employment was terminated due to his misbehaviour. Mr Gultekin disputes the circumstances put forward by QPI.
Explanation of the delay
[10] In a written submission, Ms Lysien-Bednarz said:
“Immediately after receiving the letter of dismissal by the respondent the applicant attempted to contest it by raising the matter with his immediate superiors. The applicant was advised by his supervisor that the decision was final. He was offered no avenue for appeal.
Within two weeks after his dismissal the applicant contacted the Antidiscrimination Commission (AC) believing that this was the correct avenue for an unfair dismissal claim. The AC, in turn, advised the applicant to seek advice from a private solicitor.
The applicant contacted various private solicitors however he could not afford the upfront fees.
After various other attempts by the applicant in obtaining legal advice within the private sector, he was referred to the Mt Druitt and Area Legal Centre.
On 11 August 2009 the applicant was assisted within his application for Unfair Dismissal. On the same day the applicant had express posted the application to the AIRC.”
[11] In response to the submission by Ms Lysien-Bednarz, QPI filed a written submission. That submission said:
“There were a number of incidents during Mr Gultekin’s employment which resulted in either file notes, warnings and suspension:
• On 13/5/05 Mr Gultekin was suspended for throwing a box of stock at another employee, resulting in a workplace injury;
• On 13/6/06 Mr Gultekin was suspended for throwing stock and formally counselled;
• On 5/9/06 Mr Gultekin left site two hours prior to the end of his rostered shift without advising Management;
• On 23/8/06 Mr Gultekin was given allegations of bullying and harassment against Gary Sims. He was subsequently suspended and moved to another department when he returned to the workplace, with a first and final warning. Mr Sims was subsequently redeployed to another area of Woolworths, as a result of the bullying and harassment by Mr Gultekin;
• On 17/12/07 Mr Gultekin was suspended for hitting another employee’s machine;
• On 28/4/09 Mr Gultekin was suspended for refusing to work, disappearing from the workplace, and swearing and intimidating behaviour against his supervisor, Michael Pinkus.
Mr Gultekin had a history of unacceptable behaviour and had a notice of termination in relation to bullying and harassment. Attached is the email from Mr Pinkus resulting in the investigation. When the decision to terminate Mr Gultekin’s employment was made, based on the information we possessed, we took into account his history, and in particular, the repetitious nature of such behaviour.
I am aware that Mr Gultekin spoke to Michael Pinkus on 6 May, (the day after his termination) asking him to be a referee for future employment. (Mr Pinkus is the Section Leader who had the incident resulting in Mr Gultekin’s termination). Mr Pinkus has been rung on several occasions since that time to provide a reference for Mr Gultekin.
Throughout his employment Mr Gultekin has always been represented by the National Union of Workers (NUW) on every occasion. On 5 May 2009 (date of termination) Mr Gultekin was represented by Nick Belan, NUW Organiser and Peter Strong, NUW delegate.
I believe that Mr Gultekin sought advice from the NUW, who have their own solicitors, Slater & Gordon, who provide free advice. I have been advised that the NUW did not want to represent Mr Gultekin following his termination, as they felt that the termination was fair and reasonable, particularly in relation to his history.
I note that Mr Gultekin did not contact the ADB until over two weeks following his termination. It then took over three months before he found the Mt Druitt & Area Community Legal Centre Inc. to represent him.
Consequently, I would like to dispute the extension of time requested in this matter, based on the information provided.”
Action taken by the Applicant
[12] Mr Gultekin maintains that he disputed the termination of his employment by raising the matter with his immediate superior but was told that the decision to terminate him was final. I am satisfied that Mr Gultekin took some limited action to dispute the termination of his employment and so find.
Prejudice to the Respondent
[13] QPI made no submission on this point, nor did Mr Gultekin. The absence of a claim of prejudice to the Respondent has therefore been a neutral consideration in the making of this decision. However, I note that the absence of a claim of prejudice, or of prejudice itself, does not constitute a positive reason to extend time.
Merits of the substantive application
[14] The facts of the substantive application appear to be strongly contested. On the material before me, I am unable to make any finding concerning merit and this issue has therefore been neutral in my consideration.
Fairness between the Applicant and other persons in a like position
[15] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.
Conclusion
[16] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”
[17] The onus is on Mr Gultekin to convince me that I should extend time. I am not satisfied, on balance, that he has met that onus.
[18] Mr Gultekin has, in my view, not made out a case for an extension of time. Even taking the written submission of Ms Lysien-Bednarz on its face, there is no real explanation of why the application was 78 days late. Particularly, there is no evidence, beyond Mr Gultekin’s assertion, that he pursued legal advice during the great majority of the days following the expiry of the 21 day limit. In a situation where no substantial argument is put by an applicant, there is nothing before me to positively convince me that I should extend time. The delay in filing the applicant is so significant that, all in all, I find that this is not a case where I should grant an extension of time.
[19] The application to extend time is refused and therefore the substantive application must also be dismissed.
[20] An order reflecting this decision is in PR990289.
COMMISSIONER
1 (1995) 67 IR 298 at p299.
2 [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)
3 Ibid at paragraph 23.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR990288>
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