Majid Nasiri v BHP Group Limited

[2020] FWC 3767

[2020] FWC 3767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Majid Nasiri
v
BHP Group Limited
(U2020/8917)

COMMISSIONER PLATT ADELAIDE, 17 JULY 2020

Application for an unfair dismissal remedy – request for an extension of time – application lodged within time – extension of time not required.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

Background

[2] Mr Nasiri has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with BHP Group Limited (BHP) which his form F2 Unfair Dismissal Application advised took effect on 10 May 2020.

[3] The application was lodged on 29 June 2020 by Unfair Dismissal Experts on behalf of Mr Nasiri.

[4] The application did not recognise that it was made beyond 21 days from the date of dismissal.

[5] On 1 July 2020, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 16 July 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Nasiri was directed to provide a statement concerning the extension of time and any documents to be relied upon by 9 July 2020 (and serve the same on BHP). The Directions were also sent to Unfair Dismissal Experts.

[6] No material was lodged on behalf of Mr Nasiri.

[7] On 15 July 2020, my Associate corresponded with Mr Nasiri (and his representative) about his failure to comply with the directions requiring compliance by midnight on that date.

[8] At 5.21pm on 15 July 2020 Mr Lachlan Yule, Industrial Relation (sic) Consultant, emailed my Chambers without copying in the Respondent. My Chambers advised Mr Yule at 5.54pm that as the Respondent had not been copied in, the email would not be brought to my attention and further that it is my standard practice to require a witness statement from the Applicant, annexing any supporting documentation. A witness statement was urgently requested.

[9] At 8.48pm, my Chambers received an unsigned witness statement authored by Unfair Dismissal Experts based on the instructions that they had received to date.

[10] At 10.17am on 16 July 2020, an allegedly signed statement (where the Applicant’s name was typed) made by Mr Nasiri was provided and a copy of a transaction record which suggested that payment in the sum of $73.20 had been made to the Commission on 31 May 2020 at 10.47pm.

Hearing

[11] A hearing was conducted by way of telephone conference on 16 July 2020. A sound file record of the telephone conference was kept. Mr Yule as an employee of Unfair Dismissal Experts sought leave to represent Mr Nasiri on the basis of s.596(2)(a), (b) and (c) of the Act.

[12] I declined to allow Mr Yule to represent Mr Nasiri on the basis sought. My reasons for this decision are as follows:

•  The history of the matter to date identifies that Unfair Dismissal Experts failed to:

•  identify the need to seek an extension of time on the form F2

•  comply with the written directions

•  comply with the extension granted

•  The conduct of Unfair Dismissal Experts does not indicate the required level of diligence which would improve the efficiency in dealing with a relatively simple matter.

•  Mr Nasiri has provided a statement in respect of the matter and a copy of the transaction record of the original lodgement of his claim. In my view Mr Nasiri was able to effectively communicate the steps he took in lodging the claim.

•  Any disparity in representation skills between Mr Nasiri and BHP would be mitigated by the conduct of the matter as a determinative conference.

[13] Mr McLean represented BHP.

[14] Mr Nasiri confirmed the information contained in his statement. His position is relevantly summarised as follows:

•  He completed an on-line unfair dismissal application on 31 May 2020 and provided a screenshot showing that the Fair Work Commission charged him the $73.20 application fee on that date.

•  After lodgement, he contacted the Fair Work Commission a few times to get an update on his case and was told that the Commission could not locate my application, and that he should submit it again.

•  Mr Nasiri does not understand why the Commission did not receive his 31 May 2020 application despite being charged the application fee.

[15] I have corresponded with the Commission’s Finance team who have advised that the application fee was received on 31 May 2020. I have also corresponded with the Commission’s IT team who advised that on 31 May 2020 an error in the lodgement system occurred which resulted in applications not being recorded but the application fee being charged. This advice was provided to the parties prior to the hearing and is consistent with that experienced by Mr Nasiri.

[16] BHP accept that the dismissal occurred on 10 May 2020 and based on the information provided by Mr Nasiri and the Commission, did not oppose the contention that the Application was lodged within the 21 day period.

[17] I find that the Applicant made a valid claim in respect of his dismissal on 31 May 2020 which is within the time permitted by the Act. It was not his fault that an error in the Commission’s IT system did not retain his application after taking payment. Whilst the text of the claim is not retrievable, that does not alter the fact the Mr Nasiri lodged a claim challenging his dismissal.

[18] The matter will be transferred to a Western Australian based member. I note that both parties (in Mr Nasiri’s case with the assistance of a representative) have indicated a willingness to conciliate the matter.

[19] I direct that BHP file a Form F3 Employer Response within 7 days.

[20] An Order³ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr M Nisiri on his own behalf.

Mr J McLean on behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
July 16.

Printed by authority of the Commonwealth Government Printer

<PR721080>

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2   Section 394(3) of the Act

3 PR721081