Naftary Gitigi v Amana Living

[2021] FWC 1441

[2021] FWC 1441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Naftary Gitigi
v
Amana Living
(U2021/433)

COMMISSIONER WILLIAMS PERTH, 22 MARCH 2021

Application for an unfair dismissal remedy - extension of time.

[1] Mr Naftary Gitigi (Mr Gitigi or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Amana Living (the Respondent).

[2] Mr Gitigi’s application says he was notified of his dismissal and it took effect on 22 December 2020 and the Respondent has provided a copy of the termination letter dated 22 December 2020 which is consistent with this.

[3] Mr Gitigi made this application on 15 January 2021.

[4] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[5] The application has been made more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[6] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

[7] The Applicant has provided a written response to the Fair Work Commission’s direction. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there exceptional circumstances?

The reason for the delay

[8] Mr Gitigi provided the following response to the Fair Work Commission’s request for information:

“...I was dismissed on 22nd of December and following was Christmas and new year break which i thought office were not operating.” (sic)

[9] Erroneously assuming the Fair Work Commission was not operating over the Christmas/New Year period, in my view, is not an acceptable reason for delay. Particularly, in circumstances where the Fair Work Commission on its’ website provided a news update on 21 December 2020 that included the following:

“Our counters are closed due to the pandemic, but we’re still operating. However the Fair Work Commission offices have reduced business hours over the festive period.” (Underlining added)

[10] There is no other information before the Fair Work Commission with regards to the reason for the delay.

[11] Consequently, in this case the fact Mr Gitigi erroneously assumed the Fair Work Commission was not operating over the Christmas/New Year period is not an acceptable reason for the delay and is not exceptional. In any event he has not explained how this erroneous assumption delayed the making of his application.

[12] There is no acceptable reason for the delay which weighs against granting an extension of time.

Any action taken by the person to dispute the dismissal

[13] There is no evidence before the Fair Work Commission to suggest the Applicant took any action to dispute the dismissal other than the making of this application. This weighs against granting an extension of time.

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

[14] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[15] It is only after a hearing of a matter such as this would it become clear what the reasons for the dismissal were and whether the complaints made in the application demonstrate unfairness within the meaning of the Act. Consequently, I view the merits of the application as a neutral factor in considering whether to extend time.

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

[16] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[17] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[18] I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[19] 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 the Fair Work Commission and must be dismissed.

[20] An order [PR727843] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 3 February 2021.

Printed by authority of the Commonwealth Government Printer

<PR727842>