Dimitrios Christopoulos v Ikon Administration Pty Ltd

[2023] FWC 3447

[2023] FWC 3447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dimitrios Christopoulos
v

Ikon Administration Pty Ltd

(U2023/11998)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 DECEMBER 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Dimitrios Christopoulos (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant said in his application that he was dismissed from his casual employment with Ikon Administration Pty Ltd (respondent) on or before 8 November 2023. The respondent denies that the applicant was dismissed.

1. In his written materials, the applicant explained that on 2 November 2023 his supervisor told him that his shift was redundant effective from 6 November but that he would contact the applicant on 5 November 2023 after he had organised a new roster. The supervisor failed to call the applicant on 5 November 2023. The supervisor called the applicant on 6 November 2023 to say that he would call back later in the day with an answer, but he did not do so. On 8 November 2023 the applicant called the supervisor, who said that he would call back in three hours, but he again failed to do so. Also on 8 November 2023 the applicant was told by human resources that there was no work available. The applicant worked his last shift on 4 November 2023.

1. For the purposes of considering whether an extension of time is required, I accept the contention in the application that the dismissal occurred on 8 November 2023. By that time, the supervisor had on three occasions failed to call the applicant about the new roster, despite saying that he would do so. It was reasonable for the applicant to infer that he had been dismissed on 8 November 2023, as he said in his application. I reject the alternative contention advanced by the applicant at the hearing that the dismissal may have occurred on 22 November 2023, when he received a further email from the company stating that it had no work for him. There is no reason to regard this as an act of dismissal. In light of the above, the 21-day period ended on 29 November 2023. The application was lodged on 3 December 2023. In order for his application to proceed, the applicant requires an extension of time.

1. The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3). As to the reason for the delay (s 394(3)(a)), the applicant said that he had believed that he would get further work but this did not occur, and that he was not given any formal notice of the termination of his employment. These are not acceptable reasons for the delay. The applicant’s understanding and belief was that he had been dismissed on or before 8 November 2023. That is what he said in his unfair dismissal application. He should therefore not have expected to receive any further work, and should not have delayed the lodgement of his unfair dismissal application until 3 December 2023. The applicant said that he was ‘computer illiterate’ and relied on his wife, who works 12-hour shifts, to lodge his claim. But applications do not need to be lodged on a computer. Paper applications can be lodged. Assistance is available over the telephone. The reasons for delay weigh against an extension of time.

1. Sections 394(3)(b), (c), (d) and (f) are neutral matters. The applicant did not contend that he became aware of his dismissal after it took effect. He did not take other action to dispute his dismissal. There is no prejudice to the employer. And I do not consider that there are any matters that are relevant to the consideration in s 394(3)(f).

1. As to the merits (s 394(3)(e)), the applicant submitted that the respondent had unfairly dismissed him by failing to give him work while at the same time hiring new employees whom it was providing with work that could have been given to him. He said that he was dismissed in secrecy and without explanation, and that the respondent had not acted with integrity or transparency. The respondent said that the other casuals who had been given work had special skills and maintained that it had not dismissed the applicant, who remained a casual on its books and who would be given work if it became available. The merits of the application would depend on factual findings made at the final hearing. I consider the merits to be a neutral consideration.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are such circumstances in this case. Consequently, I have no power to extend time. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D. Christopoulos for himself
M. Galle for the respondent

Hearing details:

2023
Melbourne
21 December

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