Mr Nicholas Karistianos v As Automotive Pty Ltd trading as Anthony Smith Toyota

[2010] FWA 4049

[2010] FWA 4049

FAIR WORK AUSTRALIA

DECISION

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

Mr Nicholas Karistianos
v
AS Automotive Pty Ltd trading as Anthony Smith Toyota
(U2010/6921)

COMMISSIONER SMITH MELBOURNE, 28 MAY 2010

Request for Fair Work Australia to allow extension of time for lodgement of application.

[1] On 10 March 2010, Fair Work Australia received an application from Mr Nicholas Karistianos pursuant to s.394 of the Fair Work Act 2009. The application indicated that the date of the applicant’s dismissal was 8 February 2010.

[2] The application was made outside the time limit prescribed by s.394(2) of the Act and the employer, AS Automotive Pty Ltd trading as Anthony Smith Toyota, by letter dated 19 April 2010, raised a jurisdictional objection on the basis that the application had not been made with 14 days of the dismissal.

[3] At the hearing to determine the jurisdictional objection Mr N. Karistianos appeared on his own behalf and Mr A. Smith appeared on behalf of AS Automotive Pty Ltd. Both parties relied on written submissions already filed with the Tribunal and no further matters were raised.

[4] Section 394(3) of the Act provides Fair Work Australia with a discretion to extend the time limit of 14 days as fixed by s.394(2) if it is satisfied that there are exceptional circumstances pertaining to the late lodgement.

“394(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is 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.”

[5] Mr Karistianos is required to persuade the Tribunal to exercise the discretion to extend time. The written submissions on the file to be relied upon by Mr Karistianos state:

“To whom it may concern,

On the 19th of February from my home phone [phone]), i made a phone call to 1300 306 325 to inquire about my status in regards to my new start allowance.

I received the information my case was approved for payment.

I then asked the employee from the centerlink participation team to please transfer me to fair work australia so i could lodge my unfair dismissal.

The call was transfered and i discussed in detail my case to someone called mick who took all my details and informed me that they do not give out refrence numbers,someone will contact me in around two weeks.

I was not contacted within the time frame, so i then called 1300 799 675(fair work australia) to inquire about my case on the 10th of march and was told they had no record.

Nicholas Grant Karistianos”

[6] Having heard from Mr Karistianos and having considered his written submissions and the submissions of Mr Smith I am not satisfied that exceptional circumstances exist in relation to the reason for the delay in filing his application beyond 14 days from the date of his dismissal.

[7] I refuse the application.

COMMISSIONER

Appearances:

N. Karistianos the applicant.

A. Smith on behalf of AS Automotive Pty Ltd trading as Anthony Smith Toyota.

Hearing details:

2010.

Melbourne:

May, 28.

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<Price code A, PR997556>