Mr Nung Dang v Plasmo Pty Ltd

[2014] FWC 6468

[2014] FWC 6468

FAIR WORK COMMISSION

DECISION

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

Mr Nung Dang
v
Plasmo Pty Ltd
(U2014/10719)

COMMISSIONER CLOGHAN PERTH, 16 SEPTEMBER 2014

Unfair dismissal - out of time.

[1] On 9 July 2014, Mr Nung Van Dang (Mr Dang or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Plasmo Pty Ltd (Employer).

[2] Mr Dang states in his application that his dismissal took effect on 29 June 2012.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 14 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Dang has not made the application within 14 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 9 July 2014), if it 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.

[6] On 14 July 2014, I issued Directions and advised the parties that I intended to deal with the issue of whether I should allow Mr Dang to lodge his application on 9 July 2014 by way of written submissions.

[7] The Applicant did not provide any submissions. The Employer provided its written submissions, as directed, on 5 August 2014.

[8] For the reason above, pursuant to paragraph 587(3)(a) of the FW Act, the application is dismissed for want of prosecution. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Respondent: 5 August 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR555524>