Mrs Shokrieh Rezaee v Felav Pty Ltd t/as M & P&M Nanovich
[2010] FWA 5178
•15 JULY 2010
[2010] FWA 5178 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Shokrieh Rezaee
v
Felav Pty Ltd t/as M & P&M Nanovich
(U2009/11761)
COMMISSIONER WILLIAMS | PERTH, 15 JULY 2010 |
s. 394 Termination of employment.
[1] Mrs Rezaee, the applicant has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Felav Pty Ltd t/as M & P&M Nanovich.
[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.
[3] The applicant was employed on 14 February 2008 and terminated on 29 July 2009. The application was lodged on 1 September 2009.
[4] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.
[5] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 below.
s. 394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(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.
[6] The applicant was invited to provide submissions in writing and has done so regarding the application to extend time for making the substantive application and I indicated at that time I intended to decide the matter on the basis of these submissions. The respondent was provided a copy of the applicants submissions and invited to respond but did not do so.
Are there are exceptional circumstances?
The reason for the delay
[7] The applicant submits that the reason for the delay was because she does not speak English and has limited financial means and so was not in a position to seek private legal advice. The applicant had no choice but to seek free advice.
[8] The applicant sought advice from the Islamic Women’s Organisation who helped her to file a General Protection’s Dispute. This was filed on 7 August 2009 within 14 days of her dismissal.
[9] The following week she was advised to contact a community legal organisation, CASE for Refugees (CASE), and saw a solicitor at CASE who on 26 August 2009 referred her to the Employment Law Centre of WA who made an appointment to see her on 31 August 2009. On advice from the Employment Law Centre on 1 September 2009 she withdrew her General Protection’s application and lodged this application.
[10] It is also submitted that the applicant has instructed her current representative that representative error on the part of the Islamic Women’s Organisation contributed to the delay. No detail is provided to support this statement.
Any action taken by the person to dispute the dismissal
[11] After the termination the applicant sought to contact the employer but was unsuccessful in this regard and as noted above has filed a prior application.
Prejudice to the employer (including prejudice caused by the delay)
[12] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.
The merits of the application
[13] On behalf of the applicant it is submitted that she was a permanent employee and entitled to the protection of the unfair dismissal provisions and that she was summarily dismissed by text message without any reason being provided to her.
[14] However the applicants own statement in the original application was that:
“I was told by text message there was no work for me.”
and further her in her letter attached to her application she wrote that:
“My employer stated in the Centrelink Separation Certificate that the reason for the dismissal was a shortage of work. However, the day that I was dismissed, I saw that my employer had hired another 5 workers for the same role that I had been performing.”
[15] The Centrelink Employment Separation Certificate mentioned by the applicant was attached to the application and does indicate the reason for separation was a shortage of work.
[16] Clearly the respondent has on two occasions indicated the reason for the termination was a shortage of work however the applicant disputes this is correct.
Fairness as between the person and other persons in a similar position.
[17] Apparently four other employees whose employment was terminated in similar circumstances did file General Protection applications which were subsequently changed to unfair dismissal remedy applications.
[18] The applicant submits that because the late lodgement had not previously been raised as a barrier to the application at the first conciliation conference her application should now be viewed as having been accepted by Fair Work Australia. This submission has no substance and is contrary to the express terms of section 394 of the Act.
[19] I note that it is a matter of record known to the applicants representative that the tribunal has previously denied an application involving a person in a similar position in Sima Rezaee v Felav Pty Ltd t/as M & P&M Nanovich (U2009/11762) a decision which was confirmed by a Full Bench on appeal 1.
Conclusion
[20] The onus is on the applicant to persuade Fair Work Australia that a further period should be allowed for her to make this application beyond the statutory time limit of 14 days.
[21] Regarding the reasons for the delay, I note that the applicant did ably manage to lodge the prior s. 365 application within nine days of her dismissal so self evidently her language and financial difficulties are not themselves matters I should accept as being an acceptable reason for the delay in the making of this application.
[22] Next the simple statement that there was representative error by the Islamic Women’s Organisation is not supported by any detail to allow such a finding to be made.
[23] Finally there is no clear explanation for part of the delay, between the applicant being referred to CASE the week after 7 August 2009 and then seeing them only on 26 August 2009.
[24] In my view then these reasons submitted for the delayed application are not acceptable explanations for the delay and this weighs heavily against extending time for making this application.
[25] There were steps taken to otherwise contest the application and there is no evidence of prejudice to the respondent if the extension of time was granted and so both of these factors weigh in favour of extending the time.
[26] The reason for the termination provided to the applicant by the respondent being a shortage of work, if correct, would provide a defence to the substantive application on the grounds that the dismissal involved a genuine redundancy ( s. 385(d).) This reason for the termination however is obviously not accepted by the applicant. Consequently the merits of the application are unclear and so this factor is neutral in determining the extension of time application.
[27] With regard to persons in a similar position the fact that the tribunal has previously refused an application by another employee arising from the same events does weigh against the granting of this application to extend time.
[28] I have considered the information provided and the relevant factors with regard to extending time within which to make this application and I am not satisfied that here there were exceptional circumstances.
[29] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before Fair Work Australia and is dismissed.
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