Mark Eszenyi v Toll Transport Pty Limited

[2015] FWC 4929

[2015] FWC 4929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Eszenyi
v
Toll Transport Pty Limited
(U2015/5991)

COMMISSIONER BISSETT MELBOURNE, 22 JULY 2015

Application for relief from unfair dismissal - extension of time - representative error.

[1] Mr Mark Eszenyi (the Applicant) has made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Eszenyi alleges that the termination of his employment on 27 May 2015 by Toll Transport Pty Limited was unfair.

[2] The application was lodged by Mr Eszenyi’s representative Mr Amnon Kelemen of Employee Assist on 18 June 2015. The application was therefore not made within 21 days of the date of the dismissal.

[3] The Commission has the discretion to extend the time for lodging an unfair dismissal application under s.394(3) of the Act. The Respondent advised on 14 July 2015 that it did not intend to make any submissions in relation to the extension of time matter. Mr Eszenyi filed a witness statement and an outline of submissions. Both parties consented to the matter being dealt with on the papers.

The legislation

[4] Section 394(3) of the Act sets out the matters for consideration in determining if the discretion should be exercised to grant an extension of time within which to make an application for unfair dismissal.

394 Application for unfair dismissal remedy

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

The reason for the delay

[5] Mr Eszenyi first made contact with Employee Assist on 28 May 2015, the day after his termination. On 17 June 2015 at 12.12pm the Applicant emailed Jessica Arkles, Industrial Advocate at Employee Assist, advising that funds were no longer an issue and to lodge his unfair dismissal application.

[6] At 4:05pm on 17 June 2015 the Applicant followed up with Ms Arkles to see how his application was progressing. At 4.21pm Ms Arkles advised the Applicant that she had made the application to the Commission.

[7] On 18 June 2014 Mr Kelemen of Employee Assist filed an application on behalf of Mr Eszenyi with the Commission.

[8] It is submitted that the reason for delay is representative error.

When first became aware of the dismissal

[9] No submissions were put on this criterion. There is no evidence that Mr Eszenyi was not aware of his dismissal, in fact he contacted Employee Assist on the day after his dismissal. This weighs against granting an extension of time.

Action taken to dispute the dismissal

[10] No submissions were put on this criterion. There is no evidence that Mr Eszenyi took any steps to contest his dismissal. This weighs against granting an extension of time.

Prejudice to the employer

[11] No submissions were put in this criterion. This weighs in favour of granting an extension of time.

Merits of the application

[12] Mr Eszenyi submits that, although he was made redundant, his position was advertised following his dismissal. This submission weighs in favour of granting an extension of time.

Fairness between the person and others in a similar position

[13] No submissions were put on this criterion. This criterion is neutral.

Conclusion

[14] Mr Eszenyi’s explanation for the delay in lodgement is representative error. Whilst the times given for the exchange of correspondence between Mr Eszenyi and Employee Assist do not reflect the actual times on the emails included in Mr Eszenyi’s witness statement, I am nonetheless satisfied that the exchange of emails occurred in the order stated by Mr Eszenyi in his witness statement and that Ms Arkles did advise him on 17 June 2015 that she had made the application on his behalf. Why she did so when clearly she had not is not explained by the Applicant’s representative. I do not consider Mr Eszenyi should be disadvantaged because he was misled by the Ms Arkles and Employee Assist.

[15] Applying the approach in Clark v Ringwood Private Hospital 1 I am satisfied that representative error may be grounds for exceptional circumstances. In this case Mr Eszenyi did not contribute to the late lodgement of his application beyond the 21 day statutory time limit. In fact he followed up on the lodgement of his application when he had not received confirmation that it had been lodged and he was told that an application had been made.

[16] Mr Eszenyi’s representative has not demonstrated the professionalism one would expect of a paid agent in this matter. No explanation has been provided as to why Mr Eszenyi was told his application was lodged when it had not. Clients of a paid agent should not have to confirm that their representative has done what they have said they have done.

[17] I find that there are exception circumstances such that I will exercise my discretion to grant an extension of time. I therefore grant Mr Eszenyi until 18 June 2016 to lodge his application. The application will now be referred to conciliation.

COMMISSIONER

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