Elrifai v Demons Formwork & Construction Pty Ltd

[2011] FWA 5090

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ammar Abdul Aziz Elrifai
v
Demons Formwork & Construction Pty Ltd T/A Demons
(U2011/6213)

DEPUTY PRESIDENT BARTEL ADELAIDE, 2 AUGUST 2011

Termination of employment - extension of time

[1] On 23 March 2011 Fair Work Australia received an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) from Ammar Elrifai (the applicant). According to his application, Mr Elrifai’s employment was terminated on or about 24 December 2010, after receiving notice of termination two weeks earlier. The application was therefore filed 10 weeks outside the 14 day statutory time limit.

[2] Demons Formwork & Construction Pty Ltd T/A Demons is the named respondent to the application. No Employer Response Form has been filed and the respondent did not present for conciliation. The respondent’s phone numbers as provided by the applicant have been disconnected. There was no appearance by the respondent in the extension of time proceedings.

[3] The applicant now resides in Sydney, where he lived prior to obtaining employment with the respondent. He was represented by counsel with the permission of the Tribunal. Mr Elrifai did not attend the proceedings in Adelaide and the opportunity to present evidence via video link from Sydney was not taken up. An affidavit of the applicant in support of an extension of time being granted was presented at the hearing.

[4] The applicant relies on the following matters in support of the granting of an extension of time:

• The respondent did not provide written advice of the termination of employment;



• The applicant did not understand his legal rights;



• The applicant’s mental and physical health and family disruption affected his capacity or ability to attend to the matter of pursuing his termination of employment;



• English is not his first language;



• He was in difficult circumstances “financially and geographically”. 1



• Social isolation and separation from his spouse meant that he “was not in a position to fully appreciate (nor understand) any appeal process or the existence of that process”. 2

[5] The applicant stated that he saw a solicitor on 2 March 2011 in relation to separate but related proceedings and at that time was first alerted to the unfair dismissal remedy provisions of the Act. He stated that as a result of that meeting the application was filed.

[6] Section 394 of the Act deals with applications for an unfair dismissal remedy and provides that:

“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…