Mrs Sima Rezaee v Felav Pty Ltd t/as M & P&M Nanovich

[2009] FWA 1455

Note: An appeal pursuant to s.604 (C2009/11379) was lodged against this decision - refer to Full Bench decision dated 1 July 2010 [[2010] FWAFB 4590] for result of appeal.

[2009] FWA 1455

FAIR WORK AUSTRALIA

DECISION

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

Mrs Sima Rezaee
v
Felav Pty Ltd t/as M & P&M Nanovich
(U2009/11762)

COMMISSIONER WILLIAMS PERTH, 11 DECEMBER 2009

s. 394 Termination of employment.

[1] Ms Sima Rezaee, the applicant in this matter 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 Trading 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 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] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

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 within 14 days of her dismissal.

[9] After that she sought further advice and following a meeting with the Employment Law Centre of WA on 1 September 2009 she withdrew her General Protection’s application and lodged this application.

Any action taken by the person to dispute the dismissal

[10] After the termination the applicant sought to contact the employer but was unsuccessful in this regard and as noted above had filed a prior application.

Prejudice to the employer (including prejudice caused by the delay)

[11] 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

[12] The applicants says she was with summarily dismissed by text message without any reason being given. The respondent says the applicant was employed as a vegetable packer on an hourly basis as required. The Respondent says the dismissal followed earlier advice to all employees in February / March that the business was winding down. The Respondents says it no longer has any packers working for it and no longer conducts any business.

Fairness as between the person and other persons in a similar position.

[13] 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. 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. Clearly this submission has no substance and is contrary to the express terms of section 394.

Conclusion

[14] 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. I have considered the information provided and the submissions by both parties on the relevant factors and am not satisfied that here there where exceptional circumstances.

[15] 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.

COMMISSIONER

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