Mr Sergey Volchkov v Cantek Pty Ltd T/A Scantek Solutions

[2018] FWC 4710

[2018] FWC 4710

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Sergey Volchkov
v
Cantek Pty Ltd T/A Scantek Solutions
(C2018/3386)

COMMISSIONER CIRKOVIC MELBOURNE, 10 AUGUST 2018

Application to deal with contraventions involving dismissal.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 9 August 2018. Mr Sergey Volchkov has made an application pursuant to section 365 of the Fair Work Act (“the Act”) for the Fair Work Commission (“the Commission”) to deal with a dispute involving contraventions relating to his dismissal. It is a dismissal of the Applicant said to have occurred for performance related reasons with effect on 25 May 2018. Mr Volchkov lodged his application on 20 June 2018 with the result that the application was outside of the time prescribed in section 366(1)(a) of the Act.

[2] Section 366(2) allows for the Commission to allow a further period within which such an application is to be made if the Commission is satisfied there are exceptional circumstances taking into account the reason for the delay, any action taken by Mr Volchkov to dispute his dismissal, any prejudice including prejudice caused by the delay which might be suffered by the employer, the merits of his application, and fairness as between Mr Volchkov and other persons in a like position.

[3] Mr Volchkov gave evidence about the reasons for the delay and the evidence is set out in his written submissions in this proceeding. But, shortly stated, Mr Volchkov gave evidence that on 15 June 2018 he attempted to electronically file a general protections application with the Commission. At that stage had the application been lodged successfully it would have been within time. It was clear from the material attached to his submissions that there was an unsuccessful uploading of the general protections application.

[4] The Commission's own records indicate that Mr Volchkov called the Perth registry on 15 June 2018. The Commission's records also indicate that on 20 June 2018 Mr Volchkov also followed up his earlier unsuccessful lodgement via telephone, although it appears from this evidence that it was not apparent to him at that time that his lodgement had been unsuccessful given that the only acknowledgement that he received from the Commission was an acknowledgement on 15 June that he would be called within 48 hours from the registry team as to his credit card details.

[5] On 20 June 2018 Mr Volchkov contacted the Commission by telephone presumably to follow up on his credit card payment. According to the undisputed evidence of Mr Volchkov he was told by a staff member in the registry on 20 June 2018 that there was no record of his application in the system and he was recommended to resubmit his application by email. The Commission's own telephone records support Mr Volchkov's account. Mr Volchkov resubmitted his application successfully on 20 June 2018.

[6] Given the circumstances I am satisfied that the explanation given by Mr Volchkov for the delay is a satisfactory explanation. It seems clear that within time Mr Volchkov unsuccessfully endeavoured to lodge his application and it did not become apparent to him that his application or his attempted lodgement had been unsuccessful until after the expiry of the time period set out in the legislation.

[7] It is also clear from the evidence that he did not simply sit on his hands and do nothing from 15 June 2018 and made a genuine inquiry as to the progress of his application on 20 June 2018. For that reason I am satisfied that he has provided an acceptable explanation for the delay. This weighs in favour of the granting of an extension of time.

[8] Turning then to the question of the action taken by the Applicant to dispute his dismissal, Mr Volchkov concedes in his written submissions that he did not challenge or dispute his dismissal after he became aware of it. That is a fact that weighs against the granting of an extension of time.

[9] With respect to the question of prejudice, the employer has argued that it will be inconvenienced as it is in the process of a corporate reorganisation and has transferred its business to its holding company, Scantek Solutions Pty Ltd. Ms May stated in her evidence that the holding company still retains staff and would be performing the functions of Cantek.

[10] I do not find this argument persuasive. Given the delay was only five days I do not believe if an extension of time were granted the employer will suffer any prejudice as a consequence of the delay of the lodgement of the application beyond the ordinary inconvenience of defending a claim. I find this criterion neutral in this matter.

[11] As to the merits of the application, both parties have filed materials in their respective applications and responses. I note that the allegations as to contravention of general protections provisions are disputed by the Respondent. In applications of this kind being interlocutory in nature it is inappropriate to express a concluded view about the merits of an application. It is sufficient for the present purposes to note that on the material available to me, Mr Volchkov has an arguable case as to a contravention of the general protections provisions.

[12] As to fairness as between the Applicant and persons in a similar position, the Applicant contended that his situation is less fair than others because of the delay that was caused by a technical issue on the Commission's behalf. The Respondent argued that his position was more fair because of the Applicant's high technical background and high level of education. I find this consideration to be neutral in this matter.

[13] It is clear from the structure of section 366(2) that in assessing whether there are exceptional circumstances, account needs to be taken of all the matters. Individual matters might not when viewed in isolation be particularly significant and so it is necessary to look at matters collectively and to ask whether collectively the circumstances are out of the ordinary, unusual, special or uncommon, even though when viewed individually the circumstances might not so be described.

[14] Having regard to the evidence of Mr Volchkov in this matter I am satisfied that when viewing the matters set out in section 366 collectively that the Applicant has demonstrated that there are exceptional circumstances which warrant a consideration of whether I should exercise my discretion. Although statutory time limitations should be complied with I am not aware of any reason, nor has any reason been put forward that I accept on this occasion, as to why I should not in this case exercise my discretion to extend the time period.

[15] This is a case where the Applicant has made a genuine attempt to comply with the statutory timeframe and has been frustrated in his endeavours by technology. It is also a case where the Applicant has made a genuine endeavour to after the event follow up on the course of his application. I am satisfied that it is appropriate in the circumstances that I allow a further period within which to allow the Applicant to make his application and I extend the time within which the application under section 365 of the Act may be made in this case until 5 pm on 20 June 2018.

[16] Consequently the application is a valid application and an order to that effect has been issued separately in PR609830. I will refer the matter back to the registry for a conference allocation as required by the Act.

COMMISSIONER

Appearances:

Mr S Volchkov on his own behalf

Ms D May for Cantek Pty Ltd

Hearing details:

2018

9 August

Melbourne and Perth (via video conference).

Final written submissions:

Applicant’s Outline of Argument – Extension of time

Respondent’s Outline of Argument – Extension of time

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