Majid Amjadi v Shiny Pty Ltd

[2023] FWC 3066

[2023] FWC 3066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Majid Amjadi
v

Shiny Pty Ltd

(U2023/10724)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 NOVEMBER 2023

Extension of time – no exceptional circumstances – application dismissed

1. The following is an edited version of a decision delivered earlier this morning on transcript. Majid Amjadi (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Shiny Pty Ltd (respondent) objects to the application because it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant contends that he was dismissed on 20 July 2022. The 21-day period ended on 10 August 2022. The application was lodged in the Commission on 31 October 2023, over 14 months out of time. In order for his application to proceed, the applicant requires an extension of time.

1. The applicant did not attend the hearing. The notice of listing advised the parties that s 600 of the Act allows the Commission to determine a matter in the absence of a person who has been required to attend before it. I proceeded to do so.

1. The Commission does not have a general discretion to extend time. The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression found in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in subparagraphs (a) to (f). As to the reason for the delay (s 394(3)(a)), the applicant stated in his application that his English language skills were poor and that he was not familiar with unfair dismissal applications. He provided no further explanation. The applicant has not made out a reasonable explanation for his delay. The reasons given for the delay weigh against an extension of time. Sections 394(3)(b), (c), (d) and (f) are neutral matters: the applicant does not contend that he became aware of his dismissal after it took effect; he did not take other action to dispute his dismissal; there is no prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people.

1. As to the merits (s 394(3)(e)), the applicant stated in his application that his dismissal was unfair because he was not told the reason for his dismissal or given notice of termination, and that he was asked to leave after having made a complaint about other employees. The respondent submitted that in July 2022, it asked the applicant to provide it with information about his visa status, and that he did not return to work the next day, never to be heard from again. If this is what occurred, the applicant has no case at all, as there was no dismissal. But I am prepared to infer that the applicant would have more to say about the circumstances if the matter proceeded. I will regard the merits as a neutral consideration.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I was not satisfied that there were such circumstances in this case. Consequently, I had no power to extend time. For these reasons, the application was dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant
P. Wu for the respondent

Hearing details:

2023
Melbourne
22 November

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