Mr George Karamanis v AFT KPS Family Trust trading as KPS Security Pty Ltd

[2012] FWA 9902

[2012] FWA 9902

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal

Mr George Karamanis
v
AFT KPS Family Trust trading as KPS Security Pty Ltd
(C2012/2739)

DEPUTY PRESIDENT SMITH SYDNEY, 27 NOVEMBER 2012

s.366(1) application must be filed within 60 days of the dismissal.

[1] Mr George Karamanis has made an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The respondent to the application, AFT KPS Family Trust trading as KPS Security Pty Ltd (KPS), object to the Tribunals jurisdiction to issue a certificate under s.369 of the Act on the basis that the application was lodged beyond the 60 days after the dismissal took effect (s.366(1)).

[2] When the matter was first listed for conference on 19 March 2012 Mr Karamanis did not attend. When contacted he advised that he could not attend and that he did not receive the notice of listing. The conference was conducted in his absence and in the result, no further action was taken on the file.

[3] On 16 October Mr Karamanis contacted my Associate asking for his matter to be relisted. Given the insistence of Mr Karamanis the matter was listed on 2 November 2012 to hear his application.

[4] KPS was advised that it was not required to attend.

[5] As to the termination date, the material from KPS stated that Mr Karamanis was terminated on 5 December 2011 and given that the application was made on 17 January 2012 it would have been out of time. However, Mr Karamanis stated that he was not dismissed until 20 December in which case the application would have been within time.

[6] In support of his argument, Mr Karamanis handed up bank statements to show that he was provided with his final pay on 4 January 2012. He submitted that if he was terminated on 5 December he should have received his final payment earlier.

[7] The transcript of proceedings was sent to KPS for its reply. KPS concentrated on meetings which occurred on both 5 and 20 December but maintained its position that the termination took place on 5 December. The evidence of KPS however is not clear that a termination of employment occurred on 5 December and the fact that Mr Karamanis was not paid until 4 January is a factor in favour of finding that the termination took place on 20 December.

[8] I find the termination of employment of Mr Karamanis took place on 20 December 2011 and that his application is within time.

[9] I will issue a certificate although I entertain serious doubts as to whether or not he:

• has a workplace right; or

• has, or has not, exercised a workplace right;

• proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.

DEPUTY PRESIDENT

Appearances:

G. Karamanis on his own behalf.

K. Rainbow on behalf of AFT KPS Family Trust trading as KPS Security Pty Ltd.

Hearing details:

2012.

Melbourne:

March, 19; and

November, 2.

Final written submissions:

KPS Security Pty Ltd, 13 November 2012.

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<Price code A, PR531613>