Janusz Tymoszuk v ComfortDelgro Cabcharge T/A Westbus Regions 1 Pty Ltd

[2013] FWC 928

[2013] FWC 928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janusz Tymoszuk
v
ComfortDelgro Cabcharge T/A Westbus Regions 1 Pty Ltd
(U2012/14542)

VICE PRESIDENT WATSON SYDNEY, 8 FEBRUARY 2013

Application for unfair dismissal remedy - application for extension of time - Fair Work Act 2009 s.394.

Introduction

[1] This decision concerns an application for unfair dismissal remedy by Mr Janusz Tymoszuk pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Tymoszuk’s employment by ComfortDelgro Cabcharge T/A Westbus Regions 1 Pty Ltd. The application was made one day outside of the statutory time limit prescribed by s.394(2) of the Act. The applicant was summarily dismissed with effect on 10 October 2012, and the application was made on 25 October 2012.

[2] The parties attempted conciliation without success, and the matter was subsequently listed for hearing of the extension of time application on 8 February 2013. In accordance with directions issued, the applicant filed submissions and witness statements on 18 January 2013. On 30 January 2013, the respondent indicated that it would not be filing any materials in relation to the extension of time application. The applicant then requested the Fair Work Commission exercise its power under s.399(1) of the Act to deal with the extension of time application on the papers. The respondent consented to this. I admit the statements filed as evidence and proceed to determine the matter on the papers.

[3] The Act provides that an application may be accepted within a further period as allowed by the Fair Work Commission: s.394(2)(b) and that the Fair Work Commission may allow the period to be extended if satisfied that there are exceptional circumstances. The tribunal is also required to take into account a number of factors set out in s.394(3) of the Act in assessing whether exceptional circumstances are present. I turn to consider those factors.

The reason for the delay

[4] The applicant asserts that the reason for the delay in making the application was due to an error made by the applicant’s representative, the Transport Workers’ Union of Australia (TWU). The error was on the part of Mr Robert Rasmussen, the TWU representative of the applicant. Mr Rasmussen provided a witness statement to the effect that on 24 January 2013 he mistakenly saved the email containing Mr Tymoszuk’s application as a draft, rather than sending it to the TWU’s legal department for lodgement with Fair Work Australia as he intended to do. The following day, Mr Rasmussen realised his mistake after contacting the legal department to confirm that the application had been made the previous day. The application was then immediately lodged with Fair Work Australia.

Whether the person first became aware of the dismissal after it had taken effect

[5] In his witness statement, Mr Tymoszuk states that he was dismissed on 10 October 2012, effective immediately. I do not consider that this factor is relevant in the circumstances of this matter, as Mr Tymoszuk was terminated for serious misconduct with immediate effect.

Any action taken by the person to dispute the dismissal

[6] Mr Tymoszuk states in his witness statement that upon learning of his summary dismissal he immediately appealed the dismissal to the General Manager of the respondent. Once Mr Tymoszuk became aware that his appeal had not been successful, he contacted the TWU, and on 23 October 2012 forwarded the relevant materials to the union to allow them to lodge his application.

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

[7] The delay in this matter, being one day, is not significant. No objection has been raised to an extension of time on the basis of prejudice to the respondent.

The merits of the application

[8] The next factor concerns the merits of the application. The applicant submits that the claim has strong merits, as he believes there were mitigating circumstances surrounding the dismissal of the applicant which the respondent failed to take into account. Mr Tymoszuk’s witness statement describes what he asserts are the mitigating circumstances. I am unable to conclude that the application is without merit.

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

[9] No submissions were put on this point. I do not consider this factor is relevant to this case.

Conclusion

[10] In all the circumstances, I am prepared to extend the time for filing of the application. I consider that there is a reason for the delay. The delay was short and caused by an administrative error on the part of Mr Tymoszuk’s representative. That reason cannot be blamed on Mr Tymoszuk. Although representative error may not in all the circumstances justify an extension of time, I consider that the one day delay in the present matter was due to exceptional circumstances. An extension of time to 25 October 2012, the date on which the application was filed, is granted.

VICE PRESIDENT

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