Gaitri Udit v Synnex Australia Pty Ltd - [2014] FWC 5924

[2014] FWC 5924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gaitri Udit
v
Synnex Australia Pty Ltd
(U2014/7503)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 3 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 23 May 2014 Ms Gaitri Udit lodged an application with the Fair Work Commission (the Commission) by telephone alleging she was unfairly dismissed by Synnex Australia Pty Ltd (Synnex) on 2 May 2014.

[2] On the same day, correspondence was sent to Ms Udit requesting that she complete the application form and that she make payment of the required fee by 6 June 2014. 1

[3] Despite the telephone application being made and accepted on 23 May 2014, Ms Udit’s application was not recorded in the Commission’s case management system until 26 May 2014.

[4] On 5 June 2014, the Commission received Ms Udit’s completed application and on 10 June 2014, Ms Udit paid the required fee. The matter was subsequently listed for conciliation on 10 July 2014.

[5] On 9 July 2014, Synnex lodged their response to Ms Udit’s application. Synnex objected to Ms Udit’s application on the following grounds:

the application was made out of time; and

the dismissal was a case of genuine redundancy.

[6] As a result, the matter was referred to a member of the Commission to determine whether Ms Udit should be granted an extension of time. Directions were issued requiring Ms Udit and Synnex to file any material in favour/not in favour of her application for an extension of time respectively.

[7] On 18 August 2014, Ms Udit filed a witness statement which outlined the relevant events. At paragraph 20, she confirms that she “sent the completed application form on the 5th [June] 2014 which was within the required time frame” as stipulated in the initial letter sent to her on 23 May 2014. Ms Udit submits that she should “be given the chance to further pursue with [the] unfair dismissal case”.

[8] On 25 August 2014, the Australian Industry Group (AiG), on behalf of Synnex advised that it no longer wanted to pursue the jurisdictional objection that Ms Udit’s application was filed out of time. The following day, I caused correspondence to be sent to AiG enquiring whether it agreed to have the matter determined on the papers to which it responded, on 27 August 2014, that it had no objection.

[9] Section 397 of the Fair Work Act 2009 (the Act) provides that the Commission must conduct a hearing or conference if the matter involves disputed facts. As there are no disputed facts in this matter I will decide the matter on the papers.

[10] Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules. The Fair Work Commission Rules 2013 (the Rules) at Rule 9 provides:

“(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a)either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.”

[11] I am satisfied that Ms Udit’s application was made by telephone on 23 May 2014 and that her completed application was filed within 14 days of her making the telephone application as required by the Rules.

[12] Rule 9(4)(a)(ii) provides that the prescribed fee must be paid within 14 days of the application being made. Ms Udit did not make that payment until 10 June 2014, some 4 days late. However in all the circumstances I am prepared to waive compliance with that rule and extend the time for making the payment to 10 June 2014.

[13] As I am satisfied that Ms Udit made her application within the time period provided in the Act, the application will be referred to conciliation.

DEPUTY PRESIDENT

1 See rule 9

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