Mr Ali Mousazadeh v Ingham Enterprises Pty Limited

[2012] FWA 3051

[2012] FWA 3051

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ali Mousazadeh
v
Ingham Enterprises Pty Limited
(U2012/5434)

COMMISSIONER CLOGHAN PERTH, 10 APRIL 2012

Unfair dismissal remedy.

[1] On 24 February 2012, Mr Ali Mousazadeh (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from Inghams Enterprises Pty Limited (“the Employer”).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The Employer declined to participate in conciliation because of a jurisdictional objection and also denied that the Applicant was unfairly dismissed from his employment. Consequently, the application was referred to me for arbitration on 14 March 2012.

[4] An application seeking a remedy for alleged unfair dismissal must be made within 14 days after the dismissal took place or within such further period as FWA allows (see subsection 394(2) of the FW Act).

[5] The Applicant was dismissed on 31 January 2012 and consequently failed to meet the legislative timeline of 14 days.

[6] The Tribunal can allow a further period to accept the application if it is satisfied 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.

(see paragraph 394(2)(b) of the FW Act)

[7] On 16 March 2012, I issued a Statement and Directions inviting the Applicant to make a written submission addressing whether there are exceptional circumstances, taking into account the criteria in paragraph [6] to enable the Tribunal to allow a further period to 24 February 2012 to receive the application.

[8] I also advised the Applicant in the Statement and Directions that should I not receive a written submission, the Tribunal would make a determination based on the papers in its possession.

[9] The Applicant was required to make a written submission by 4pm on 30 March 2012. No submission was received. Further, no communication was received from the Applicant advising why he was unable to make a submission.

[10] Having considered the information provided by the Applicant in his application, the Employer’s response to the application, the criteria in subsection 394(3) of the FW Act, I am not satisfied, pursuant to paragraph 394(2)(b) of the FW Act, that there are exceptional circumstances to allow a further period beyond the standard timeline of 14 days for the application to be properly made.

[11] Accordingly, an order will be made dismissing the application and issued conjointly with this Decision.

COMMISSIONER

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