Joao Bastos v Caelli Constructions (Vic) Pty Ltd
[2010] FWA 3105
•19 APRIL 2010
[2010] FWA 3105 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
Joao Bastos
v
Caelli Constructions (VIC) Pty Ltd
(U2010/6222)
COMMISSIONER RYAN | MELBOURNE, 19 APRIL 2010 |
Termination of employment; jurisdiction; extension of time.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section s.394 of the Fair Work Act 2009. The application was made by Mr Joao Bastos. The application was filed at Melbourne on 22 February 2010 using Form F2 seeking a remedy in relation to an unfair dismissal from his employment with Caelli Constructions (VIC) Pty Ltd (the Respondent). The date of termination was identified as the 29th June 2009.
[2] On 26 February 2010 the Respondent, through the Master Builders Association of Victoria (the MBAV), filed a Form F4 Objection to Application for Unfair Dismissal Remedy raising a jurisdictional challenge to the application on the basis that a s.394 application could not relate to a termination which occurred prior to the 1July 2009.
[3] The application was dealt with by Fair Work Australia (FWA) as an application under s.643 of the Workplace Relations Act1996 (the Act) with the objection by the employer being dealt with as a jurisdictional objection on the basis of the application being out of time. Mr Bastos did not make a specific application for an extension of time, however, the application contained the following: “I understand that this may be a late claim. I have encountered a huge ‘Language Barrier’ as my English is very poor. It will be highly appreciated if you could consider all my difficulties and access my case in merit.” The Tribunal treated the application as also constituting an application for an extension of time in which to make the application 1.
[4] The matter was dealt with by FWA at hearings on 4March and 25March 2010. At the hearing on the 4 March Mr Bastos was assisted by his neighbour Mr Ranjin. Mr Bastos spoke very little English and it was evident that in order to proceed with a hearing that an interpreter in the Portuguese language would be needed. Directions were given to Mr Bastos and to Mr Ranjin, who indicated a continuing preparedness to assist Mr Bastos, that an outline of the applicant’s case for an extension of time had to be filed with FWA by 5pm on 12 March 2010, with FWA then forwarding the submission to Mr Adamopoulos of the MBAV. The employer’s response outline of submissions was required to be filed by close of business on the 23 March 2010 with FWA ensuring delivery of a copy to the Applicant 2.
[5] A brief hearing of the matter occurred on 25 March 2010 with Mr Bastos giving evidence and being subject to cross examination from Mr Adamopoulos. No evidence was given to the Tribunal on behalf of the Respondent. No oral submissions were made by the Applicant and Mr Adamopoulos made only a very brief submission relying upon his written submission.
[6] At the conclusion of the hearing the Tribunal advised the parties that an extension of time would be granted to Mr Bastos and that written reasons for that decision would follow. Mr Adampoulos advised that the employer would appeal the decision 3.
Reasons
[7] The reasons for the decision to grant an extension of time to the Applicant in this matter are now set out below.
[8] An application for an extension of time in relation to an application under s.643 of the Workplace Relations Act 1996 is to be decided having regard to the decision of the Industrial Relations Court of Australia in Brodie–Hanns v MTV Publishing Ltd 4 (Brodie-Hanns) which sets out the following principles for dealing with an application for an extension of time:
“2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[9] The explanation for the delay was that Mr Bastos did not know that he had any rights in relation to the termination of his employment by his employer. Mr Bastos first became aware that he may have certain rights in relation to his termination only after he spoke to his neighbour, Mr Ranjin, in December 2009. Mr Ranjin, who also had little or no knowledge in relation to employee rights regarding termination of employment, made some enquires on behalf of Mr Bastos, including with Job Watch, and on the basis of those inquiries assisted Mr Bastos fill in and file an application seeking a remedy for an alleged unfair dismissal 5..
[10] The written submission of the employer identified that Mr Bastos had engaged lawyers to represent him in making and pursuing a WorkCover claim under the Accident Compensation Act (Vic) and on the basis of that information the employer asserted that Mr Bastos had an understanding of his workplace rights at least as at 31 August 2009.
[11] Mr Adamopoulos cross examined Mr Bastos on his asserted lack of knowledge as to his workplace rights and in particular on whether or not the Applicant’s legal representatives in the WorkCover matter discussed with him unfair dismissal or unlawful termination matters. Mr Bastos’s very clear evidence was that no discussion had taken place between Mr Bastos and his legal representatives in relation issues concerning the termination of employment. Mr Bastos went to a law firm he found through an advertisement in his local newspaper in which the law firm advertised their workplace injury practice.
[12] Notwithstanding the evidence of Mr Bastos, Mr Adamopoulos in his brief oral submission on 25March said: “I just want to re-clarify, that solicitors were engaged in September and I would be astounded if Maurice Blackburn didn’t go through all options available to the applicant.” 6
[13] I have no difficulty in accepting the evidence of Mr Bastos that lawyers who were representing him in relation to a WorkCover matter did not explore with him whether he had any other non WorkCover issues with his former employer.
[14] Rather than undermine Mr Bastos’s position I find that the actions of Mr Bastos in seeking legal help in relation to a WorkCover matter and never raising with his legal representatives issues concerning his termination of employment is consistent with his claim that he did not know he had any rights in relation to an unfair dismissal remedy until his neighbour, Mr Ranjin, helped him in December 2009.
[15] Mr Bastos was unaware of the existence of a right under the Act to challenge a termination of employment as being harsh unjust or unreasonable. In being unaware of a right under the Act Mr Bastos cannot then be blamed for not exercising that right within the time frame specified in the Act. 7
[16] It appears that but for two critical actions Mr Bastos may still have been ignorant of any rights he had in relation to the termination of his employment. The first critical action was Mrs Bastos’s approach to her neighbour Mr Ranjin in December 2009 to ask for help because of her family’s difficult financial circumstances. The second critical action was the preparedness of Mr Ranjin to make inquiries on behalf of his neighbour Mr Bastos about what if anything could be done by Mr Bastos concerning his termination of employment. 8
[17] What is clear is that once Mr Ranjin made inquiries on behalf of Mr Bastos and found that Mr Bastos may have been entitled to make an application in relation to his alleged unfair dismissal then Mr Bastos, with Mr Ranjin’s assistance, acted on that information and made what they thought was the proper application for a remedy in relation to an alleged unfair termination.
[18] Brodie-Hanns identifies that I should consider whether there is any prejudice to the Respondent in granting an extension of time. The Respondent has not asserted at any stage during the proceedings that it would be prejudiced by a grant of an extension of time to Mr Bastos.
[19] Brodie–Hanns notes that the merits of the substantive application may be taken into account in determining whether to grant an extension of time. In this matter the merits of the application were not addressed in any detail. In fact Mr Adamopoulos asked the Tribunal to ensure that Mr Bastos in addressing the issue of an extension of time did not go to issues of merit 9. However having urged FWA to limit Mr Bastos to not addressing the issue of merit, Mr Adamopoulos did not feel constrained by the same limitation and the written submission from Mr Adamopoulos did raise the issue of the merits of the application.
[20] Mr Adamopoulos, for the employer, asserted that the application lacked merit because of the continuing limitations on the ability of Mr Bastos to work. However the material filed by Mr Adamopoulos does no more than establish that Mr Bastos has the same limitations on his ability to work that he had prior to and at the time of his termination. Prima facie the application as filed with FWA does not invite a conclusion that the application is devoid of merit. With nothing else the issue of merit cannot operate against Mr Bastos.
[21] Brodie-Hanns identifies that consideration of fairness as between Mr Bastos and other persons in a like position are relevant to the exercise of the Tribunal’s discretion to grant an extension of time.
[22] Mr Bastos has poor English and at the time of his termination was unaware of his right at that time to make an application in relation to the termination of his employment on the ground that the termination was harsh, unjust or unreasonable or unlawful. There are many other persons in a like position to that of Mr Bastos and the underlying rationale behind the unfair dismissal jurisdiction namely “a fair go all round” would be rendered illusory if the prima facie position of requiring compliance with the timelines in the Act was applied too strictly.
[23] In all of the circumstances of this matter an extension of time should be granted to Mr Bastos.
COMMISSIONER
Appearances:
Mr J. Adamopoulos, Master Builders’ Association of Victoria for Caelli Constructions (VIC) Pty Ltd
The applicant appeared in person assisted by Mr Ranjin
Hearing details:
Melbourne
4 and 25 March 2010
1 Transcript at PN76
2 Transcript at PN78 to PN98
3 Transcript at PN208-209
4 (1995) 67 IR 298
5 Transcript at PN21 to PN27 and the written submission of Mr Bastos and supporting letter from Mr Ranjin both dated 9th March 2010
6 Transcript at PN195
7 Chalmers v Deakin University [1998] FCA 1187 23 September 1998, Ryan, Olney, North JJ at 47
8 Transcript at PN20, PN21 and PN27
9 Transcript PN81
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