Mr George Stefanidis v Victorian Building Authority

[2016] FWC 5385

[2016] FWC 5385

FAIR WORK COMMISSION

DECISION

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

Mr George Stefanidis
v
Victorian Building Authority
(U2016/8083)

COMMISSIONER ROE MELBOURNE, 5 AUGUST 2016

Application for relief from unfair dismissal – extension of time.

[1] Mr Stefanidis commenced work as a contractor for the Victorian Building Authority (VBA) about July 2010. Mr Stefanidis says that on 13 May 2016 he was told that his services were terminated immediately due to his name appearing in an audit report. Mr Stefanidis followed up with the VBA seeking more details on 16 May and 22 May 2016. On 23 May 2016 the VBA advised that they would provide a response by 30 May 2016 but no response has been received. The unfair dismissal application was made on 30 June 2016. Mr Stefanidis argues that although he was described as a contractor he was in fact an employee and that he was dismissed at the initiative of the employer on 13 May 2016. He was aware of the dismissal on the day it occurred. The application is therefore 27 days late.

[2] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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.

The reasons for the delay

[3] The only reason given for the delay is that Mr Stefanidis was unaware of the 21 day time limit. In the circumstances of this case this is not an unusual situation which could support a finding of exceptional circumstances. The fact that Mr Stefanidis was seeking further particulars of the reason for the termination is also not a reason which could justify a finding of exceptional circumstances in this case. The termination and the reasons for it were known, Mr Stefanidis was seeking further particulars but this was not a barrier to making an application for unfair dismissal. Mr Stefanidis says that he was told that he would get further particulars by no later than 30 May 2016. He did not receive those further particulars. There is no evidence of further action by Mr Stefanidis to obtain further particulars after that date. There is therefore no reason for the delay of one month after 30 May 2016.

The other factors

[4] It is not suggested that Mr Stefanidis became aware of the dismissal after it had taken effect. This is therefore a neutral factor in this case.

[5] Mr Stefanidis contested the proposed dismissal by taking some action after the dismissal to seek further particulars. The actions were not extensive or sustained. This is a factor which stands slightly in favour of the finding of exceptional circumstances.

[6] The application was 27 days late. This is a significant period but not so long a period as to cause significant prejudice to the employer. This is a neutral factor.

[7] The documentary evidence provided by the employer strongly supports a finding that Mr Stefanidis was a contractor not an employee. If this is established then Mr Stefanidis is not able to have his case heard. Nothing provided by Mr Stefanidis at this point seriously contradicts the evidence that he was a contractor. I do not exclude the possibility that Mr Stefanidis may produce further evidence. However, even though I have not heard all the evidence I can conclude that the case is weak. This is a factor which stands against a finding of exceptional circumstances.

[8] This case depends upon its own particular facts. I do not consider that my decision would be disharmonious with other decisions about related matters. I do not consider there is any issue of fairness as between the person and other persons in a similar position.

Conclusion

[9] Considering all of the factors in Section 394 leads me to conclude that there are no exceptional circumstances which justify an extension of time in this case. The application is therefore dismissed. An order is issued separately.

COMMISSIONER

Appearances:

Mr G Stefanidis represented himself.

Ms K Mackinnon and Ms R Laugallies appeared for the Respondent.

Hearing details:

2016

Melbourne

July 29

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