Mr Andrew Niechcial v Mr John Turkovic trading as J.T. Corrosion Industries

Note: An appeal pursuant to s.604 (C2012/5995) was lodged against this decision.

[2012] FWA 5266

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Mr Andrew Niechcial
v
Mr John Turkovic trading as J.T. Corrosion Industries
(U2012/6485)

DEPUTY PRESIDENT SMITH

MELBOURNE, 20 JUNE 2012

Extension of time granted.

[1] The following decision, now edited, was issued during proceedings conducted on 15 June 2012.

[2] This is an application by Mr Andrew Niechcial for an extension of time in which to lodge his application in relation to an alleged unfair dismissal. It is said by Mr Niechcial that he was dismissed on 3 February 2012. He lodged his application on 27 March 2012.

[3] In the employer’s F3 response, filed on 16 April 2012, it was indicated that the employer did not consider that the applicant had been dismissed. Mr Niechcial has filed an affidavit in these proceedings and has indicated that since 3 February 2012 the employer has not required him to work, he has not been paid and his employer never really told him he was dismissed. The employer refused to supply a termination of employment certificate and that is the case to this day.

[4] The applicant’s lack of knowledge is no defence in matters such as this, but the other factors which I regard to be important are: the uncertainty about his employment created by the employer’s stated position; together with the fact that the employer has not attended the Tribunal today to defend the matter. It is for these reasons that I will extend time. The file will now be forwarded for processing under the Act.

DEPUTY PRESIDENT

Appearances:

J. Meehan for Mr Niechcial.

Hearing details:

2012.
Melbourne:
June, 15.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Mr Andrew Niechcial v Mr John Turkovic trading as J.T. Corrosion Industries, the dispute arose from a claim brought by Mr Niechcial against Mr Turkovic for unpaid work and materials supplied for the construction of a concrete block retaining wall. The matter was heard in the County Court of Victoria. The primary issue before the court was whether the application for an extension of time to file a defence, submitted by Mr Turkovic, should be granted.

The court considered whether the delay in filing the defence was reasonable and whether there were any exceptional circumstances justifying the extension. Mr Turkovic argued that the delay was due to a misunderstanding regarding the service of the statement of claim and the subsequent engagement of legal representation. The court assessed the evidence provided by Mr Turkovic and the affidavits filed by both parties. It found that while there had been a delay, Mr Turkovic had acted promptly once he became aware of the proceedings and had engaged legal representation without further delay.

After weighing the factors, the court decided that the extension of time should be granted. The court noted that the delay was not due to any fault on the part of Mr Turkovic, and there were no significant prejudicial effects on Mr Niechcial if the defence was allowed. The court recognised the importance of ensuring that disputes are resolved on their merits and not unnecessarily prejudiced by procedural delays. The final orders of the court included granting the extension of time for Mr Turkovic to file his defence within the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established