Keang Sok v Princes Laundry Services Pty Ltd T/A Princes Laundry

[2024] FWC 3302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Keang Sok
v

Princes Laundry Services Pty Ltd T/A Princes Laundry

(U2024/13142)

COMMISSIONER MIRABELLA

MELBOURNE, 28 NOVEMBER 2024

Application for an unfair dismissal remedy - Extension of time granted

For the reasons given on transcript earlier today, I was satisfied that exceptional circumstances did exist such as to allow the Applicant to file her application for an unfair dismissal remedy out of time and I accordingly extended the time for the Applicant to lodge her application to 1 November 2024. An order to this effect will be issued with this decision.

In summary, 7 days after being dismissed, the Applicant asked the United Worker’s Union (the UWU), of which she was a member, to assist her in a workplace injury matter and on the issue of challenging her dismissal. The Applicant was allocated a Member Rights Officer (MRO) and there was follow up over the next ten days. The MRO did not follow the UWU’s established procedure for dealing with such an application and the 21 day deadline ended on 24 October 2024. The UWU contacted the Applicant on 31 October 2024 on the issue of overdue membership fees. The application was filed the following day. I was satisfied that the Applicant’s explanation of representative error was an acceptable explanation for the delay. I considered ss. 394(3)(b), (d), (e) and (f) to be neutral matters: the Applicant does not contend that she became aware of the dismissal after it took effect; there is no prejudice to the employer; the merits of the application have not been tested and it is not possible to form a concluded view; I do not consider there are any matters that are relevant to fairness between the Applicant and other people. The Applicant took steps to challenge the dismissal with repeated contact and attempts to contact the UWU and I considered this matter (s. 394(3)(c)) weighed in favour of a finding of exceptional circumstances.

Further directions will be issued for the filing and serving of materials.

COMMISSIONER

Appearances:

Mr McDonald from the United Workers’ Union for the Applicant.

Ms Wooderson for the Respondent.

Hearing details:

2024.
28 November
By Microsoft Teams Video.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Keang Sok filed an application for an unfair dismissal remedy against Princes Laundry Services Pty Ltd T/A Princes Laundry, seeking relief under the Fair Work Act 2009. The application was initially out of time, but the Applicant argued for an extension due to exceptional circumstances. The Applicant, a member of the United Worker’s Union (UWU), contacted the union for assistance shortly after being dismissed. Despite the UWU’s Member Rights Officer (MRO) not following established procedures, the Applicant maintained contact with the union over the following ten days. The union did not process the application within the required 21 days and instead contacted the Applicant about overdue membership fees on 31 October 2024. The Applicant filed her application on 1 November 2024, and the court had to decide if exceptional circumstances justified the extension.

The central legal issue was whether the Applicant’s delay in filing the application could be excused under s. 394(3) of the Fair Work Act 2009. The court needed to determine if the delay resulted from exceptional circumstances and if there was any prejudice to the employer or other relevant fairness considerations. The Applicant argued that the union's failure to process her application in a timely manner constituted exceptional circumstances, as did her repeated attempts to contact the union and seek assistance. The Respondent contended that the delay prejudiced their ability to respond to the application and questioned the merits of the claim.

The Commissioner found that the Applicant’s explanation for the delay, primarily due to the union’s procedural error, constituted exceptional circumstances. The Applicant’s actions in repeatedly contacting the union and seeking assistance weighed in favour of the application. The court considered that the delay did not prejudice the employer, and other factors under s. 394(3) did not weigh against granting an extension. Therefore, the Commissioner extended the time for filing the application to 1 November 2024. An order to this effect was issued alongside the decision, allowing the Applicant to proceed with her unfair dismissal claim. Further directions regarding the filing and serving of materials will be issued separately.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established