James Osman v Empire Tattoo Pty Ltd

[2014] FWC 6330

[2014] FWC 6330

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Osman
v
Empire Tattoo Pty Ltd
(U2014/8635)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 11 SEPTEMBER 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 10 September 2014 I advised the parties to this matter that I was satisfied that the time for lodgement of Mr Osman’s unfair dismissal application should be extended and the application would be referred for conciliation. These reasons reflect the background and reasons for that decision.

[2] On 5 August 2014 Mr Osman’s application was lodged on his behalf by his then lawyer pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The application related to the alleged termination of his employment with Empire Tattoo Pty Ltd (Empire Tattoo).

[3] The application advised that Mr Osman’s dismissal took effect on 14 July 2014.

[4] The application was referred to me for consideration. On 7 August 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 20 August 2014. Mr Osman was required to provide a witness statement and a copy of any document relied upon, by 13 August 2014.

[5] The Employer’s Response (Form F3) to the application confirmed that Empire Tattoo objected to an extension of time. It also confirmed that Empire Tattoo objected to the application on the basis that Mr Osman was not an employee, that he was not dismissed and that, in the alternative, any dismissal was consistent with the Small Business Fair Dismissal Code.

[6] On 15 August 2014 Mr Osman’s lawyer provided a statement in which she confirmed that the application was lodged one day outside of the 21 day time limit and advised that this was due to her error in lodging the application. This statement continued, to address the considerations in s.394(3) of the FW Act.

[7] The extension of time issue was briefly addressed through a telephone conference on 20 August 2014. A sound file record of this conference was kept. Mr Osman’s then lawyer participated in this conference. Empire Tattoo was represented by a Director, Ms Sanders. At this conference Ms Sanders objected to Mr Osman being legally represented and stressed the significance of the respondent’s jurisdictional objections to the application. As a consequence, I listed the matter for a telephone hearing on 3 September 2014 for consideration of the representation issue. The matter was also listed for a determinative conference to deal with the jurisdictional issues on 25 September 2014. Directions relating to the provision of material to be considered at this conference were issued.

[8] Just prior to the 3 September 2014 hearing commencing, Mr Osman’s lawyer advised that she was no longer acting for him. Further, I received advice from Anthony Matthews and Associates to the effect that Mr Matthews was appointed as an external administration for Empire Tattoo with effect from 1 September 2014 .

[9] At the hearing Mr Matthews advised that the earlier objections relative to Mr Osman’s employment standards and dismissal were now no longer being pursued. Mr Matthews requested further time to consider the respondent’s position with respect to the Small Business Fair Dismissal Code.

[10] The matter was listed for a further telephone hearing on 10 September 2014. At this hearing Mr Matthews confirmed that there was no dispute that the application could proceed notwithstanding his appointment as Administrator. He also confirmed that the Small Business Fair Dismissal Code objection to the matter was now not pursued and there was no opposition to an extension of time being granted. Mr Matthews indicated that Empire Tattoo was prepared to discuss with Mr Osman a possible reinstatement arrangement with likely subsequent termination of employment which would then enable Mr Osman to pursue recovery of entitlement obligations under the Australian Government scheme for this purpose.

[11] Section 394 states:

“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.”

[12] In terms of s.394(2) there is no dispute that Mr Osman received advice of the termination of his employment 14 July 2014. Consequently, the application was lodged one day outside of the 21 day time limit.

[13] Mr Osman’s former lawyer’s statement confirmed that he visited her and gave instructions for the lodgement of the application within the 21 day time limit. This statement confirmed that she wrongly calculated that 21 day time frame. I have concluded that this was an incidence of representative error which may, depending on the overall circumstances and the actions taken by Mr Osman, constitute an acceptable reason for the delay. I note that representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. 1 Consequently, the actions taken by Mr Osman are central to the question of whether there is an acceptable reason for the delay. I am satisfied that in these particular circumstances these actions support an extension of time, in that the delay was not the result of inaction on the part of Mr Osman.

[14] On the information before me, I am satisfied that Mr Osman became aware of the termination of employment decision on the day upon which that termination of employment took effect.

[15] From the information before me it is not clear that Mr Osman challenged the proposed termination of his employment in any manner other than the lodgement of this application.

[16] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.

[17] In terms of the merits of the application, the information before me does not allow a conclusive view on the merits of the application to be formed.

[18] Considerations of fairness relative to persons in similar circumstances to Mr Osman support an extension of time.

Conclusion

[19] For the reasons I have set out above, I am satisfied that Mr Osman’s circumstances support an extension of time. I regard those circumstances as exceptional for the purposes of s.394(3). The request for an extension of time is granted and, accordingly, the application will be referred for conciliation. I have noted that the parties both propose to pursue settlement discussions as a matter of urgency such that this conciliation may not be required. An Order (PR555343) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

J Osman on his own behalf.

A Matthews representing the respondent.

Hearing Details:

2014.

Adelaide:

August 20.

September 3, 10.

 1   see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85

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<Price code A, PR555342>