Michael Yfantidis v Metcash Food & Grocery Pty Ltd

[2014] FWC 2923

[2014] FWC 2923

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Yfantidis
v
Metcash Food & Grocery Pty Ltd
(U2014/6447)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 MAY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 5 May 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 11 April 2014 Mr Yfantidis lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Metcash Food & Grocery.

[3] In that application, Mr Yfantidis advised that his dismissal took effect on 17 March 2014. In his application, Mr Yfantidis asserted that the application was made within 21 days of his dismissal taking effect.

[4] The application was referred to me for consideration. On 14 April 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 5 May 2014. Mr Yfantidis was required to provide a witness statement and a copy of any document relied upon, by 28 April 2014.

[5] An Employer’s Response (Form F3) to the application was received on 18 April 2014. That response identified the employer as Metcash Food & Grocery Pty Ltd (Metcash). It confirmed that Mr Yfantidis’ dismissal took effect on 6 November 2013 with payment in lieu of notice. The Form F3 confirmed that Metcash objected to an extension of time.

[6] Mr Yfantidis did not comply with the requirement to provide material to the Fair Work Commission (FWC) and to Metcash by 28 April 2014. On 1 May 2014 my Associate requested urgent advice from him in this respect. Mr Yfantidis provided a written response on 2 May 2014. My office sent a copy of that response to Metcash and I have taken this response into account in considering this issue.

[7] The extension of time issue was considered through a telephone conference on 5 May 2014. A sound file record of this conference was kept. Mr Yfantidis participated in this conference. Metcash was represented by its Human Resources Manager, Ms Bateman.

[8] At the conference I advised that I would amend the application pursuant to s.586 of the FW Act so as to specify the respondent as Metcash Food & Grocery Pty Ltd.

[9] I have considered the extension of time issue on the material before me. Mr Yfantidis’ advice of 2 May 2014 and the advice he provided at the 5 May 2014 conference confirmed that the reasons for the delay related to his lack of awareness of the 21 day time limit and his travel, for personal reasons, to Western Australia. Mr Yfantidis also advised that over this time he was preoccupied by his search for alternative employment.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged 4 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Yfantidis’ circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Mr Yfantidis has provided does not represent an acceptable reason why the application could not have been lodged within time. Neither Mr Yfantidis’ lack of awareness of the time limit, his personal travel or search for alternative employment represent acceptable reasons and do not have any element of exceptional circumstances about them.

[14] On the information provided in Mr Yfantidis’ application, I am satisfied that he was made aware of the termination of employment decision on 17 March 2014 which I have taken as the date that termination of employment took effect.

[15] I am unable to discern that Mr Yfantidis took any action to challenge the termination of his employment other than the late lodgement of this application.

[16] The granting of an extension of time would prejudice the respondent in this matter.

[17] In terms of the merits of the application, the information before me suggests that Mr Yfantidis is unlikely to be successful on the merits of his case.

[18] Considerations of fairness relative to persons in similar circumstances to Ms Yfantidis do not support an extension of time.

Conclusion

[19] For the reasons I have set out above, the information available to me about Mr Yfantidis’ circumstances, do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR550249) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Yfantides on his own behalf.

J Bateman representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

May 5.

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