James Nyuol v Boscastle Pastries & Food Pty Ltd

[2011] FWA 7199

[2011] FWA 7199

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Nyuol
v
Boscastle Pastries & Food Pty Ltd
(U2011/9644)

COMMISSIONER WILLIAMS PERTH, 26 OCTOBER 2011

Termination of employment.

[1] Mr James Nyuol, 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 Boscastle Pastries & Food Pty Ltd.

[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.

[3] The Applicant asserts he was terminated on 8 April 2011. The Respondent denies the Applicant was terminated at the initiative of the employer. The application was lodged with Fair Work Australia on 8 July 2011.

[4] Section 394 of the Act sets out a number of procedural prerequisites to the making of unfair dismissal applications.

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 this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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] As the section says the application must be made within 14 days after the dismissal took effect. This application by Mr Nyuol has been lodged more than 14 days after the dismissal took effect and so cannot be considered unless a further period is allowed for the application to be made.

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

[7] On 15 September 2011 I wrote to the parties explaining the fact that the application had been made out of time and that Fair Work Australia was now required to decide whether it would allow a further period for the application to be made. I invited the Applicant to provide submissions to be considered when determining whether or not there were exceptional circumstances in this case. The Applicant provided a submission in writing. This was in due course provided to the Respondent and a response was received from them.

Are there exceptional circumstances?

The reason for the delay

[8] The Applicant’s submissions are that:

• He applied immediately.



• On 11 April 2011 he went to the Magistrates Court and met with a person from Legal Aid and they gave him the number of Fair Work Australia.



• He called Fair Work Australia and told them about his dismissal and what was going on in Boscastle Pastries & Food Pty Ltd.



• The Applicant says he has not delayed and applied immediately and called Fair Work Australia and told them that he was worried about himself and so he moved from Melbourne to Perth.



• He arrived in Perth and called Fair Work Australia in Melbourne and they gave him the number of Fair Work Australia in Perth.



• He immediately called Fair Work Australia in Perth and they told him to go into the city where he filled out the document (which I take to be this application).

[9] It is apparent from these written submissions provided by the Applicant that English is not his first language. This of itself is not an exceptional circumstance that would warrant an extension of time being granted. The submissions provided by the Applicant are sufficiently clear to understand the points being made by the Applicant in support of his extension of time application.

[10] Whilst it is apparent that quite promptly after he was dismissed the Applicant did speak to staff at Fair Work Australia there is no explanation as to why it was only after he had moved from Melbourne to Perth that he then lodged an application and why this only occurred three months after his alleged dismissal took effect.

[11] The Applicant has not provided an acceptable explanation for the extended period of delay between the time of his dismissal and the time of lodging this application.

Any action taken by the person to dispute the dismissal

[12] The Applicant has not advised of any other action he has taken to dispute his dismissal.

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

[13] 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

[14] The application made does not contain sufficient information that would allow the Tribunal to assess the merits of the Applicant’s case. The Applicant did not provide any further information regarding the merit of his substantive application in response to the Tribunal’s invitation for material in support of his extension of time application. The Respondent in its submissions says that the Applicant left the business of his own free will and was not dismissed. In these circumstances merit is a neutral factor when considering the application for an extension of time.

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

[15] There is nothing before the Tribunal on this factor.

Conclusion

[16] The onus is on the Applicant to persuade Fair Work Australia that a further period should be allowed for him to make this application beyond the statutory time limit of 14 days. I have considered the information provided and the submissions by both parties. There is no acceptable explanation provided by the Applicant for the delay in making this application. There is no other factor that by itself or that when considered in conjunction with other factors does amount to an exceptional circumstance.

[17] 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 was made out of time and so is not properly before Fair Work Australia and will now be dismissed. An order will now be issued to that effect.

COMMISSIONER

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