Nadia Kose v Arcorp Enterprises - [2010] FWA 2079

[2010] FWA 2079

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Nadia Kose
v
Arcorp Enterprises
(U2009/14992)

COMMISSIONER FOGGO

MELBOURNE, 19 MARCH 2010

Termination of employment; extension of time; jurisdiction.

[1] This is an application made by Ms Nadia Kose (the Applicant) for relief in respect to the termination of her employment from Arcorp Enterprises (the Respondent). The application was made on 24 December 2009 pursuant to s.643 of the Workplace Relations Act 1996 (the Act).

[2] The employment relationship subject to this application ended in July 2006 apparently as a result of a non-work related traffic incident involving the Applicant. The application was accompanied by a number of statements relating to the application, emails between the parties and various medical reports. On 1 February 2010 the Applicant sent an email to the Melbourne Registry detailing further medical information and related legal proceedings. Upon receipt of the file in Chambers it was listed for a conference to occur on 26 February 2010.

[3] On 17 February 2010 the Respondent, through the Victorian Employers’ Chamber of Commerce and Industry (VECCI), filed the Employer’s Notice of Appearance which included and objection to an extension of time for the lodgement of the application. A Notice of Motion to Dismiss the Application for Want of Jurisdiction which claimed the application was outside jurisdiction as the Applicant resigned her employment, the employer employed 100 employees or fewer at the relevant time and the claim was lodged outside the required 21 day period allowed for such applications accompanied the employer’s appearance. Conciliation was objected to prior to these issues being determined.

[4] The conference was cancelled and a Notice of Invitation was issued pursuant to s.648 of the Act advising the parties that the extension of time and jurisdictional issue of whether the Respondent employed more than 100 employees would be determined on the papers. Dates were set for the filing and exchange of submissions on 26 February and 5 March 2010. While the Respondent complied with these directions the Applicant sent several emails to chambers only on dates in addition and outside those in the Invitation. All these emails have been provided to the Respondent and they have had an opportunity to consider them and respond.

[5] The primary issue is whether the time for lodgement of this application should be extended. On her application the Applicant states that date she last worked for the Respondent was either 5 or 7 July 2006 and that she is not aware of when the termination took effect as she was not notified, rather the Respondent advised the Traffic Accident Commission (TAC) that her position had been filled. The Respondent states on their appearance that the applicant resigned on 5 July 2006, that the Applicant was then given time to reconsider this decision however confirmed her position on 31 July 2006 and that salary ceased on 1 August 2006. This would mean an application such as this would have to be received by 22 August 2006 to comply with the time for lodgement contemplated by the Act. It makes this application three years and four months out of time.

Applicant submissions

[6] Question 13 on the Form R27 asks for reasons to be provided for seeking an extension of time to lodge the application. No reasons were provided for late lodgement.

[7] The emailed submissions received 19 February 2010 stated:

“For the past three and half years, I have been advised by solicitors that unfair dismissal and harrasment by Mr. John Gulbenlkoglu are a part of my Traffic Accident Case.

Reading Mr. Ari Zorlu’s response clearly shows the company’s denial in their actions. Mr. John Gulbenkoglu's behaviour and actions were cruel and unfair, not only to my health and reputation in the industry but also to my two children have suffered.

An email addresed to me on the 8th of July 2006 explains it all.

I am still waiting for an apology letter from both Mr. John Gulbenkoglu and Mr. Ari Zorlu.

I am also owed company related expanses to the value of $167.00 for which the receipts are in posession by Mr. Sam Bektas, who has not been any help at all.

I was on their payroll from March 05 to 31 july 2006 .

Date of accident 07 /07/06 , I did not have the keys to their car and I had to walk to shops.

Mr. Gulbenkoglu left a company car on my driveway from the 5th of July 2006 to the 31st of July 2006, which was then picked up by his brother in law Mr. Cinar who had the keys.

The information I have given are not allegations. Mr. John Gulbenkoglu and his family continue to bully me to this day. One of his own staff have called a number of times to inform me of his slandering. Mr. Hagop Kumruian and his family friend (Mrs. Zabel Semercioglu) along with Mr. Bernard O'Sullivan who live accross the road from my house.

On the morning of the 5th of July 2006 at 8am Mr. Gulbenkoglu came down on me like tonne of bricks over a report which was placed in his tray two weeks earlier. He closed all three doors to the office area and yelled and harrassed me until I was in tears. This was his usual behaviour towards me and towards other female members of staff. He cannot expect an injured worker who was unable to sit or stand to go back to work for more abuse and yelling from him.”

[8] The emailed submissions received 25 February 2010 stated:

“Mr. Zorlu has not listed interstate sales staff located in Queensland, Tasmania and Perth. As well as Alin Gulbenkoglu and Hagop Kumruyan in Victoria.

Mr. Gulbenkoglu’s harassment, bullying, abuse and underpayment cannot be excused as a result of having under 100 members of staff. I am still waiting for an apology from Mr. Gulbenkoglu and car parking fees for leaving his company car on my driveway from the 5th of July 2006 to the 31 july 2006.

The stress and humiliation caused by his actions also needs to be taken into consideration. He has ruined my reputation, my health and my children’s lives by his bullying at work and outside work up until this day. My court documents support what he has done, as far as I am aware, when an court order is granted, this suggests what I have stated was accepted.”

[9] The emailed submissions received 27 February 2010 stated:

“Please refer to Arcorp’s website. Under the ‘Contact Us’ link, there is a list of their national sales offices; it specifies three other offices of the company, which they have denied their existence.

Also on the home page, there is a ‘Make Poverty History’ banner on the bottom left hand corner, I wonder if Ari and John are aware of this powerful message on their web site?

I apologise for repeating my self, however, my experience with this company is use, abuse, discard and then employ family members to replace the staff that have been affected by this tradition.

I have always been a hard working employee. It is a shame to be taken advantage of due to your gender, marital status and physical health. I delivered what I was asked to, however, Arcorp did not honour their promises.

I cannot afford to hire a solicitor, and as a result, Arcorp believes that they can destroy a mother and her children and then sit back and deny it all.

Having two or two hundred employees makes no difference, human lives are more valuable. Mr. John Gulbenkoglu and Ari should be held responsible for their actions.”

[10] The emailed submissions received 5 March 2010 stated:

“It is most unfair what I have read, send by Angela Stafford . This matter needs to be looked into, driver of this van is still under investigation and the van . I was not advised by any of the legal teams . In the mean time the harrasment I have received is beyond anyone can endure .”

Respondent submissions

The original submissions of Respondent received on 25 February 2010 went to the issue of whether the employer employed 100 employees or less at the relevant time. On 5 March 2010 the Respondent filed the following with respect to the issue of time:

“The employment relationship with the Applicant ceased in July 2006. The Applicant states in her correspondence dated 25 February 2010 that she had been advised by her solicitors throughout the three and a half year period that has elapsed since the employment relationship ceased, that her ‘dismissal’ was unfair. It is presumed that the applicant’s solicitors would have been aware of the appropriate time frames for lodgement of a claim and would have advised accordingly, and the consequential delay in lodgement is solely the fault of the Applicant.

No reason has been provided by the Applicant to support the circumstances behind the extraordinary delay in lodgement, despite receiving legal advice to do so, that has resulted in the application being lodged in excess of 3 years out of time.

No correspondence has been received by the Respondent from the Applicant to discuss re-employment or compensation. The final communication was received in August 2006 requesting payroll records. Arcorp Enterprises, accordingly, has given no further thought to the matter and believed it to be all concluded.

Granting an extension of this time period would be prejudicial to the respondent as the employment relationship ended so long ago that the circumstances may be difficult to recall or defend.”

Relevant principles

[11] In determining whether to extend the tie for lodging this application the relevant tests are set out in the decision of Brodie-Hanns v MTV Publishing Limited 1. The Applicant and Respondent were advised of these principles. The principles which apply are;

“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”

[12] The relevant legislation regarding an Application to the Tribunal (previously the Australian Industrial Relations Commission) was as follows;

“643 Application to Commission to deal with termination under this Subdivision

(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.”

Conclusion and Finding

[13] The Application before the Tribunal is extraordinary with regard to the length of time which has expired between the termination of employment, or as the Respondent would have, the resignation from employment, and the lodgement of the application. The employment relationship ended in July 2006 and the Application was lodged on 24 December 2009.

[14] The Applicant stated that for the past three and half years she has been advised by her solicitor, that unfair dismissal and harassment are a part of her traffic accident case. This is the only reason raised connecting the late lodgement of the application. This is not an acceptable reason in my view.

[15] The Workplace Relations Act 1996 provided 21 days for lodgement of applications alleging unfair dismissal. It allowed for an extension of time to be granted in cases where there is an acceptable explanation. The Applicant states she had legal advice and this is of itself an important reason for not extending the time for lodgement as the solicitor should and would have been aware of the differing legislative regimes between traffic accident regulations and the provisions relating to unfair dismissal.

[16] I accept the submissions of the Respondent that there had not been anything received from the Applicant to discuss re-employment or compensation and in this context I cannot find that the termination of employment was actively contested.

[17] The submission by the Respondent that it would suffer prejudice caused by the delay is in my view a legitimate point. It would be difficult to recall and/or defend circumstances from over three years ago.

[18] There have not been detailed submissions lodged regarding the merits of the substantive application and the Applicant’s submissions are a collection of matters only some of which may be matters for consideration in this jurisdiction but many other matters which may fall into civil or criminal jurisdictions. I certainly could not conclude that on the basis of the submissions that there is merit in the application.

[19] An additional issue regarding this matter is that the Respondent has lodged an objection that the Applicant did not employ 100 or more employees at the time of the termination of employment and the Applicant is therefore unable to lodge an application for unfair dismissal. The Notice of Motion to Dismiss the Application lodged by the Respondent stated that at the time of dismissal the employer employed a total of 14 employees, nine in Victoria and five in NSW. This would not though prohibit the Applicant from lodging a claim for unlawful dismissal.

[20] In relation to this, the Form R27 states that one of the grounds for the application arises from s.659 stating that the termination of employment was ‘discrimination or other prohibited grounds’. The Applicant’s statements relevant to this are that “I have attached documents to support this application. There is a legal case has stated going on for the accident however I was advised by Gary at PILCH to loge (sic) the unfair dismissal separately.” 2

[21] Considerable documents were lodged by the Applicant including emails from her previous employer Ari, statements from Police and Doctor’s certificates and reports. They do not indicate matters directly associated with this application save for several references to the resignation.

[22] The email from Ari to the Applicant dated 8 July 2006 supports the Applicant’s statement that she was a good worker. It appears that one of the issues which has arisen between the former employer and employee has been the absence of a reference. In circumstances where the value of the work of the employer was noted it is indeed unfortunate that this issue could not have been resolved. I would ask the representative of VECCI to ask the previous employer if there is any chance a reference could be considered now, albeit I recognise that the relationships have soured and become complex.

[23] I note the desire of the Applicant to get on with her life despite the medical and psychological problems to which the Doctor’s reports allude. Perhaps this one deed may encourage the Applicant to move on with her life despite its difficulties.

[24] For the reasons above I do not grant the application for an extension of time for the lodgement of the Application. The application is dismissed.

COMMISSIONER

1 (1995)67 IR 298.

2 Form F17 question 19.

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