James Alevakis v Northern Melbourne Institute of TAFE [NMIT]

[2014] FWC 2911

[2014] FWC 2911

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Alevakis
v
Northern Melbourne Institute of TAFE [NMIT]
(U2014/5646)

DEPUTY PRESIDENT SMITH MELBOURNE, 9 MAY 2014

Application for relief from unfair dismissal—jurisdictional objection—out of time.

[1] The following decision, now edited, was issued during proceedings conducted on 2 May 2014.

[2] This is an application for an extension of time. Mr Alevakis was a casual disability support worker at the Northern Melbourne Institute of TAFE [NMIT]. He was dismissed from his employment on 12 December 2013. This information is contained in Mr Alevakis’ application. Mr Alevakis lodged his application on 14 March 2014, on one view some 71 days after his termination. Mr Alevakis argues that he didn’t receive the necessary paperwork. But it is clear that he was dismissed on 12 December—and that is known to be the case. Further, Mr Alevakis argues that he sought support from the NTEU and has not heard from them subsequently.

[3] In considering this matter the Commission must take into consideration matters identified in s.394(3) of the Fair Work Act 2009 (the Act).

[4] Section 394 of the Act provides:

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.

(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] I propose to deal with each subsection in turn. The Fair Work Commission must be satisfied that there are exceptional circumstances, taking into account the following.

[6] The first matter to be considered is s.394(3)(a), the reason for the delay and the second is subsection s.394(3)(b) which relates to whether the person first became aware of the dismissal after it had taken effect. In relation to these two subsections, the applicant submitted that there are two reasons, essentially, given for the delay. One is the failure of NMIT to provide paperwork and the second is the failure of the National Tertiary Education Union (NTEU) to respond to the inquiries made by Mr Alevakis. Further, it is clear from both Mr Alevakis’ application and the material that he submitted, that he became aware of his dismissal on 12 December and subsequently sought to challenge it directly with the Institute.

[7] Subsection (c) relates to any action taken by the person to dispute the dismissal. Again, it’s clear that Mr Alevakis was concerned and made those concerns known to the Institute and raised his application—or sought to have his application raised by the NTEU.

[8] Section 394(3)(d), dealing with prejudice to the employer, I make a neutral finding on this aspect of the provisions in the Act.

[9] As to the merits of the application, s.394(3)(e), again, I make a neutral finding.

[10] Section 394(3)(f), fairness as between the person and other persons in a similar position. This matter goes to whether or not the reasons sought for the extension of time are, in fact, exceptional circumstances or can be broadly used. In this case it appears to me that Mr Alevakis’ application for an extension of time does not rely upon matters which would be exceptional to a particular case. The fact that paperwork is not presented may, of itself, be inconsistent with either policies or the statute, but that does not mean that the termination of employment did not occur. Secondly, seeking information or seeking support from a union or a support person or a law firm and not hearing from them could be widely used as a reason for an extension of time and is not exceptional.

[11] In the circumstances I find that the delay caused by Mr Alevakis in making this application does not constitute exceptional circumstances under the Act and I dismiss the application.

DEPUTY PRESIDENT

Appearances:

J. Alevakis on his own behalf.

P. Christie on behalf of the respondent.

Hearing details:

2014.

Melbourne:

2 May.

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