Mr Malindra Perera v MediClean Services Vic Pty Ltd
[2024] FWC 3411
•6 DECEMBER 2024
| [2024] FWC 3411 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Malindra Perera
v
MediClean Services Vic Pty Ltd
(U2024/11937)
| COMMISSIONER TRAN | MELBOURNE, 6 DECEMBER 2024 |
Application for an unfair dismissal remedy – request for an extension of time – no exceptional circumstances- application dismissed.
This is the edited decision delivered on transcript.
On Saturday 5 October 2024, Mr Malindra Perera (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) from his employment with the respondent, MediClean Services (Vic) Pty Ltd, with the ABN 69622328303.
Mr Perera says that he was dismissed on Friday 30 August 2024. Before considering whether a dismissal is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time, under section 394. In order to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act.
I have considered the arguments made and the information provided by Mr Perera. I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances, so I cannot extend time within the Act.
The reason that Mr Perera has given for the delay is that he was challenging whether or not MediClean had accurately and fully paid his wages and entitlements when his employment ended. Mr Perera says that he first went to the Fair Work Ombudsman and made a complaint there about failure to pay him redundancy pay, annual leave, long service leave and superannuation. He says that the Fair Work Ombudsman was unable to assist him and he then made this application to the Commission.
Mr Perera also says that he was not aware of the 21‑day time limit, as he came to Australia as an international student and he is unfamiliar with legal processes and laws.
Unfortunately for Mr Perera, ignorance of the time limit has been found by this Commission to not be an acceptable reason for a delay, nor is making a complaint to the wrong body, such the Fair Work Ombudsman. I would further note though that the complaint made to the Ombudsman did not relate to challenging the dismissal as being unfair.
Mr Perera did not make any other submissions in relation to any of the other factors that I can consider. He was aware of the dismissal when it took effect.
In respect of the period of delay of 15 days, no submissions were made to me about prejudice caused by that delay to the employer.
In relation to the merits of the case, Mr Perera does not appear to challenge the fairness of the dismissal. His concerns relate to payments. On the other hand, the employer has raised a jurisdictional objection that the employment ended by way of genuine redundancy. However, I do not have any evidence before me about those matters and the merits of the application is not a factor weighs in favour or against my finding in relation to exceptional circumstances.
As I am of the view that there are no exceptional circumstances such that I can exercise my discretion to extend time, this application is dismissed. An Order has been issued separately.[1]
COMMISSIONER
Appearances:
M. Perera for himself
S. Athanasopoulos for the Respondent
Hearing details:
20 November 2024
Melbourne
[1] PR781459
Printed by authority of the Commonwealth Government Printer
<PR782154>
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