Eva Brokes-Tomaskova v Coskun Holdings Pty Ltd T/A Aroma Cafe ECU Joondalup

[2014] FWC 1383

[2014] FWC 1383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eva Brokes-Tomaskova
v
Coskun Holdings Pty Ltd T/A Aroma Cafe - ECU Joondalup
(U2013/15462)

COMMISSIONER WILLIAMS PERTH, 28 FEBRUARY 2014

Termination of employment - extension of time.

[1] Ms Eva Brokes-Tomaskova, the applicant in this matter has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Coskun Holdings Pty Ltd T/A Aroma Cafe - ECU Joondalup.

[2] The applicant was dismissed on 27 September 2013. The application was made on 31 October 2013.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[5] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

Are there are exceptional circumstances?

The reason for the delay

[6] The applicant submits that one reason for the delay was because she had to request assistance in making the application due to her basic English which was a barrier preventing her making the application sooner.

[7] Whilst employees who are dismissed for whom English is their second language may experience some difficulty in making applications this is not an unusual situation and far from an exceptional circumstance. It is reasonable to assume that the Parliament took this difficulty which would be experienced by many applicants into account when deciding that the 21 day time limit for the making of applications was appropriate. In terms of being aware of the statutory requirements I note that the information regarding unfair dismissal applications provided on the Commission’s website, including the requirements for these to be made within 21 days, is provided in nearly eighty languages including Czech which apparently is the applicant’s native language.

[8] The fact that English is not the applicant's first language is not an acceptable reason for the delay.

[9] The applicant also submits that another reason for the delay in making the application was that she had made many attempts to sort something out directly with the respondent. In support of this attached to the application are the body of emails that apparently were sent from the respondent to the applicant on 16 October 2013 and in reply from the applicant to the respondent on 17 October 2013. These emails generally deal with a disagreement between the parties as to the hours that the applicant should have been paid for, the applicant’s rejection of there being any basis for the respondent to complain about her performance and the applicant’s demand that the respondent confirms superannuation payments have been made.

[10] It is not apparent from these emails there was any discussion between the parties that the dismissal of the applicant might be reconsidered by the respondent so that making this application would not be necessary.

[11] The applicant has the right to pursue the respondent for any unpaid monies she believes are owed to her through separate actions independent of this unfair dismissal application. An unfair dismissal application in any event cannot deal with claims for underpayment.

[12] Whilst the applicant apparently decided to wait before making this application in the hope that her demands for payment would be met by the respondent that decision to delay making this application is not an acceptable reason for the delay. Applicants are not entitled to make application in time frames of their own choosing.

Any action taken by the person to dispute the dismissal

[13] After the termination the applicant contacted the respondent about a number of payment issues and contested the basis the respondent had for her dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[14] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[15] The respondent has objected to the application on the basis that it is out of time and so has not addressed the question of the merits of the application. For the purposes of this preliminary point as to whether further time should be allowed to make the application given the limited information provided regarding the dismissal the merits of the case are a neutral factor.

Fairness as between the person and other persons in a similar position

[16] This is not a relevant factor in this case.

Conclusion

[17] The onus is on the applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. In this case there are no acceptable reasons for the delay and none of the other factors support a conclusion that there are exceptional circumstances here. I am not satisfied that here there where exceptional circumstances.

[18] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

[19] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 14 January 2014 and 6 February 2014

Respondent, 29 January 2014

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