DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Gurovski
v
ETA Transport
(U2016/6173)

COMMISSIONER ROE

MELBOURNE, 20 MAY 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr Gurovski made an unfair dismissal application on 13 April 2016. Mr Gurovki says that he was dismissed effective from 16 March 2016. If he is correct then his application is seven days late. The employer, ETA Transport submits that Mr Gurovki was a contractor not an employee. The file was allocated to me to hear the extension of time matter. I listed the matter for Friday 13 May 2016. I noted that Mr Gurovski’s application stated that he began working for the employer in January 2016. The employer says that the employment began on 3 February 2016. The employer says that it is a small business employing three persons at the time of the dismissal.

[2] Mr Gurovski was requested to provide submissions in support of his application for an extension of time. It will not generally be consistent with the requirement for the Commission to act in a speedy and informal manner to deny an employee the opportunity to have their case heard because of a failure to provide written submissions in advance of the hearing. Many parties before the Fair Work Commission have difficulties with understanding and creating written materials. In an extension of the time matter the factual issues are generally fairly confined and it will not generally be unreasonable or unfair for necessary evidence to be given on the day of the hearing.

[3] In this case Mr Gurovski provided no reasons on the form for the late lodgement and in fact indicated that the application was being made within time. The Fair Work Commission had made a number of attempts to communicate with Mr Gurovski to encourage him to put in some material in support of his application.

[4] On 11 May 2016 I wrote to Mr Gurovski and advised him that:

“Should the Applicant fail to attend the matter will be determined on the basis of the material before the Commissioner and is likely to be dismissed on the grounds that no reason for the late lodgement has been put forward.

The Applicant should note that the application at question 1.1 suggests that period of employment is less than three months. If this is correct then the application cannot proceed as the Applicant had less than the minimum period of employment for protection from unfair dismissal. If there is any error in the information provided the Applicant should advise the Fair Work Commission and the employer prior to the hearing.”

[5] Mr Gurovski rang the Commission on 11 May 2016 in response to the letter and expressed his unhappiness with the Fair Work Commission.

[6] I am satisfied that Mr Gurovski has been put on notice that the facts as shown on his application form show that he was employed for less than three months. The minimum employment period for a small business is twelve months and otherwise it is six months. Mr Gurovski has had the opportunity to respond to this contention and has failed to do so. I am therefore satisfied that Mr Gurnovski is not protected from unfair dismissal and cannot make an application. The application is therefore dismissed.

COMMISSIONER

Appearances:

No appearance for the Applicant.

Mr R Avinic and Ms A Skordakis appeared for the Respondent.

Hearing details:

2016

Melbourne

May 13

Printed by authority of the Commonwealth Government Printer

In the recent case of John Gurovski v ETA Transport, the Fair Work Commission was called upon to decide whether to grant an extension of time for the applicant to lodge his unfair dismissal application. Mr. Gurovski sought relief from the dismissal of his employment by ETA Transport, and the primary legal issue was whether the Commission should extend the time limit within which he could lodge his application due to his late filing. The Commission had to consider whether the applicant had demonstrated exceptional circumstances justifying an extension of time, as provided under section 524(2) of the Fair Work Act 2009.

The Fair Work Commission began by examining the grounds upon which Mr. Gurovski sought the extension of time. It was noted that he had not lodged his application within the prescribed 21-day period after his dismissal, and therefore, the application was technically late. The Commission considered the factors that Mr. Gurovski presented as justification for the delay, including his medical condition, the complexity of the case, and the impact of the COVID-19 pandemic on his ability to prepare and lodge the application. The Commission evaluated the credibility and relevance of these factors in determining whether they constituted exceptional circumstances warranting an extension.

Upon reviewing the evidence, the Fair Work Commission found that while Mr. Gurovski had presented a combination of personal and external factors that may have contributed to the delay, these factors were not deemed exceptional enough to warrant an extension of time. The Commission held that the applicant had not demonstrated that the delay was caused by circumstances beyond his control or that he had acted with due diligence in preparing his application. As such, the application for an extension of time was dismissed, and the Commission did not proceed to consider the merits of the unfair dismissal application.

In summary, the Fair Work Commission refused to grant an extension of time for Mr. Gurovski to lodge his unfair dismissal application, finding that he had not demonstrated exceptional circumstances justifying the delay. The application was dismissed, and no further orders were made.

John Gurovski v ETA Transport

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established