Mr Behrooz Khorsandi v Fujitsu Australia Limited

[2012] FWA 7808

[2012] FWA 7808

FAIR WORK AUSTRALIA

DECISION

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

Mr Behrooz Khorsandi
v
Fujitsu Australia Limited
(U2012/10515)

VICE PRESIDENT WATSON SYDNEY, 5 NOVEMBER 2012

Application for unfair dismissal remedy - application for extension of time - Fair Work Act 2009 s.394.

[1] This decision, edited from a decision on transcript on 29 October 2012, concerns an application for an unfair dismissal remedy by Mr Behrooz Khorsandi pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Khorsandi’s employment by Fujitsu Australia Limited (Fujitsu). Fujitsu objected to the application on the basis that it was filed one day outside the timeframe prescribed in s.394(2) of the Act.

[2] The matter was initially listed for hearing of the extension of time application on 31 August 2012. At that hearing there was no appearance by or on behalf of Mr Khorsandi. Ms C Parker, with Ms D Louka appeared on behalf of Fujitsu. At a further hearing on 29 October 2012, Mr Collins appeared on behalf of Mr Khorsandi and Ms Parker, with Ms Louka appeared on behalf of Fujitsu.

[3] The facts of the matter as to the relevant dates and circumstances are largely not in contention. The termination of employment occurred on 30 May 2012. The application was made on 14 June 2012. It is accepted that the application was therefore filed one day beyond the 14 day time limit, being the time after which the dismissal took effect.

[4] The Act provides that an application may be accepted within a further period as allowed by Fair Work Australia: s.394(2)(b) and that Fair Work Australia may allow the period to be extended if satisfied that there are exceptional circumstances. The tribunal is also required to take into account a number of factors sets out in s.394(3) of the Act in assessing whether exceptional circumstances are present.

[5] It has been asserted and evidence was led that the reason for the delay in filing the application is an error on behalf of Mr Khorsandi by his then lawyers, Berrigan Doube Lawyers. The evidence indicates that a costs agreement with a description of the relevant matter was entered into on 7 June 2012 1 and Mr Collins indicated his instructions are that Mr Khorsandi assumed that all relevant steps would be taken by his lawyers to file an application within time and it was only subsequently that he learnt that the application had been filed one day late. It therefore appears that it is the actions of the lawyers then involved on behalf of Mr Khorsandi that led to the application being filed late.

[6] The next factor I am required to have regard to is whether Mr Khorsandi became aware of the dismissal after it had taken effect. This is a factor that might justify or give rise to exceptional circumstances for an extension of time. I do not consider that this factor is relevant in the circumstances of this matter, as Mr Khorsandi was aware of a review of his performance and was aware of the termination of his employment at or before the time it occurred.

[7] The next factor is whether Mr Khorsandi took action to dispute the dismissal. It appears that the primary action taken by him was to engage solicitors who filed the application and there are no other significant circumstances that relate to that factor. I do not consider that matter itself is significant, other than noting that Mr Khorsandi took steps that might have been expected to be taken if he wished to contest his termination. He took those steps by engaging solicitors within a short time after the termination of his employment.

[8] The next factor is prejudice to the employer, including prejudice caused by the delay. The delay in this matter, being one day, is not significant. It could be said that any unfair dismissal application involves a prejudice to the employer, but I consider that there is nothing additional to that prejudice arising from an application being filed one day late.

[9] The next factor concerns the merits of the application. The parties have filed a significant amount of material indicating the nature of their respective cases should the matter proceed. The material filed by Fujitsu discloses that there were significant performance issues that it considered in relation to Mr Khorsandi's employment. Those performance issues were raised with him. He was put on a performance improvement plan and ultimately Fujitsu made the assessment that Mr Khorsandi’s performance was not satisfactory and that there had not been sufficient improvement in his performance, and terminated his employment on the grounds of unsatisfactory performance.

[10] Those matters relate to performance over a significant period. While the material that has been filed is somewhat detailed, I believe it will be necessary to have that material tested fully before it can be assessed with any reliability. My view of the material that has been filed is that the case by Mr Khorsandi on the merits is not a strong one, but I am unable to make any more definitive findings on the ultimate test of unfairness beyond that general expression of view.

[11] I do not consider that the final factor of fairness as between the person, Mr Khorsandi, and other persons in a similar position, is relevant in the circumstances of this matter.

[12] In all the circumstances, I am prepared to extend the time for filing of the application. I consider that there is a reason for the delay. That reason cannot be blamed on Mr Khorsandi. Although representative error may not in all the circumstances justify an extension of time, I consider that a one day delay in the circumstances does give rise to the fact that there are exceptional circumstances surrounding the filing of the application. An extension of time to 14 June 2012, the date on which the application was filed, is granted.

[13] Given that there are new representatives of Mr Khorsandi in this matter and there has been significant time in having this matter heard and determined, I propose to refer the file back to the conciliation unit for a further telephone conciliation before the matter proceeds any further.

VICE PRESIDENT WATSON

Appearances:

I. Collins for Mr Khorsandi

C. Parker for Fujitsu Australia Limited

Hearing details:

2012.

Sydney.

August, 31 and October, 29

 1   Exhibit C1.

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