Mehmet Algul v LC Dysons Bus Services Pty Ltd trading as Dyson Group of Companies

[2015] FWC 2340

[2015] FWC 2340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mehmet Algul
v
LC Dysons Bus Services Pty Ltd trading as Dyson Group of Companies
(U2015/3233)

DEPUTY PRESIDENT SMITH MELBOURNE, 9 APRIL 2015

Application for relief from unfair dismissal; jurisdiction—extension of time sought.

[1] Mr Mehmet Algul had his employment summarily terminated with LC Dyson Bus Services Pty Ltd trading as Dyson Group of Companies (Dyson) on 27 January 2015.

[2] When the matter was called on Mr Algul was not in attendance. He was contacted by telephone and he stated that he was advised that it would be a conference by telephone. The notice of listing did not reflect this although it must be said that Mr Algul sought an interpreter as English was not his first language. As a result we took steps to conduct the hearing by telephone which was not ideal.

[3] On 19 February 2015, Mr Algul made an application for an unfair dismissal remedy. Given the application was out of time an extension of time was sought. This is opposed by Dyson.

[4] Section 394 of the Fair Work Act 2009 (the Act) provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1:Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

(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.

[5] The application exceeds the 21 day time period required by the Act. Therefore attention is given to the terms of s.394(3). It is to those statutory criteria to which I now turn.

(a) the reason for the delay;

[6] Mr Algul argues that when he was dismissed, he notified his union representative who began discussions with Dyson. After the union representative discussed the matter with Dyson he viewed the CCTV footage of Mr Algul (together with another union member, named Victor) involved in an incident with a passenger. Mr Algul submits that the official told him that he was wasting his time as he would lose the case. Mr Algul argued that he continued to ask his union representative to file the application, but as a result of the advice that he would lose the case, he needed to consider whether or not to file an application. As a consequence he filed the application late.

[7] It cannot be that exceptional circumstances can be grounded in advice that an applicant will lose in an application for unfair termination of employment and time is needed to consider this advice. Whilst Mr Algul persisted, it would have been appropriate for him, having received advice that he disagreed with, to lodge the matter immediately. Indeed, a further element is that his representative had negotiated a settlement with Dyson on 10 February which was rejected by Mr Algul. All the more reason to file an application expeditiously.

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

[8] Mr Algul was fully aware of the termination of his employment at the time

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

[9] It is clear that Mr Algul continued to press that his application should be filed and that he wished to pursue an unfair dismissal.

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

[10] Given the short period of time I find that there would be no prejudice to the employer.

(e) the merits of the application;

[11] When considering this aspect, it is not the case that an extensive hearing of evidence should take place. Rather, it is a conclusion that if there is no merit in the application on the applicant’s version of events, then it would not be unfair not to permit an extension of time. This is a case where Mr Algul’s actions were captured very clearly on CCTV footage. He was verbally abused by a passenger during his trip. Mr Algul stated to the passenger that he should get off the bus. The passenger remained on the bus. At a subsequent stop Mr Algul exited his protective cage and walked up to the passenger and confronted him on the bus. At the stop for a change over of driver, Mr Algul alighted from the bus to greet the change over driver. The passenger engaged Mr Algul outside the bus and then returned to pick up his goods and made a gesture towards Mr Algul that he was going to strike him with a picture. He did not do so. Mr Algul then initiated a physical altercation with the passenger which continued after the new driver took the bus forward on its journey. All of these events are clear on the CCTV footage.

[12] Mr Algul submitted that he thought the passenger had a knife and this prompted him to protect himself. Dyson stated that it did not accept this explanation. Mr Algul stated that the CCTV was blurry and so it would not be possible for anyone to say that he was being untruthful. I have viewed this footage as well. The totality of the footage and the conduct of Mr Algul does not appear to be responsive to any perceived threat of a knife.

[13] This is a case where, in my view, there would be no prospect of success. Whilst the passenger was rude and made a threatening gesture, there was no warrant for the actions taken by Mr Algul.

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

[14] To grant an extension of time in the circumstances described would create a difficulty for future cases. Not acting quickly in the face of advice that the case should not proceed does not give rise to exceptional circumstances. A case which, on its face, lacks merit, does not give rise to an extension of time.

[15] I find that the there are no exceptional circumstances which would warrant the granting of an extension of time and the application is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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