Norton Gosztyla v Perfection Fresh Pty Ltd

[2022] FWC 656

[2022] FWC 656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Norton Gosztyla
v

Perfection Fresh Pty Ltd

(U2022/360)

COMMISSIONER WILLIAMS PERTH, 25 MARCH 2022

Application for an unfair dismissal remedy.

1. Mr Norton Gosztyla (Mr Gosztyla 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 Perfection Fresh Pty Ltd (the Respondent).

1. Mr Gosztyla’s application says he was notified of his dismissal on 14 December 2021 and his dismissal took effect the same day. Mr Gosztyla’s application was made on 5 January 2022.

1. The application has been made more than 21 days after the alleged dismissal took effect.

1. 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 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.”

1. Consequently, on 27 January 2022 the Fair Work Commission’s staff 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 Fair Work Commission in determining whether there were exceptional circumstances in this case.

1. The Fair Work Commission’s correspondence explained that if he relies on a medical condition as the reason for the delay he should supply a medical certificate or report which specifically explains why his medical condition prevented him from making the application within time.

1. The Applicant provided a written response on 1 February 2022.

1. The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.

1. 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.

The Applicant’s reason for the delay

1. In his application as filed Mr Gosztyla explains that he is on workers compensation. He says his employer has hounded him and he is not really had peace and relaxation until he was unfairly dismissed. He points out it was Christmas. He says most legal documents are 28 day acting time. He says he didn’t realise that unfair dismissal paperwork had a 21 day acting time which is his fault.

1. He says between his knee injury, his pregnant wife and Christmas and the need to sort out his mental health it’s been very chaotic.

1. In the additional information filed by Mr Gosztyla in response to the Fair Work Commission’s correspondence as to the reason for the delay in he says there’s still a lot going on in regards to the company and his workers compensation claim and he put this on the back burner until he was able to give this his full attention like it deserves.

1. Considering the reasons for the delay in making the application I note that the Applicant has not provided any independent medical evidence that his sickness or mental health was so poor that it prevented him from making the application within time. Illnesses are not uncommon and without more it is not an acceptable reason for delay in making the application.

1. Being unaware of the 21 day statutory time limit is not an acceptable reason for delay.

1. The fact that it was the Christmas period is also not an acceptable reason for delay.

1. It is not uncommon that employees are on workers compensation.

1. The Applicant’s decision to put making this application on the back burner was his choice and is not an acceptable reason for delay.

1. None of the reasons for the delay that the Applicant has provided in his explanation are acceptable, neither do they, individually and together, amount to exceptional circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

1. The Applicant became aware of his dismissal on the day it took effect.

Action taken to dispute dismissal

1. The Applicant did not take any other action to dispute his dismissal.

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

1. The delay in making the application in this case will not prejudice the employer.

The merits of the application

1. The Applicant explains that the reason for his dismissal given by the Respondent was breaching Occupational Health and Safety by carrying someone on the front of the forklift. He says that if they had the correct equipment he would never have had to do this.

1. In the additional material filed by the Applicant he makes a range of allegations against the Respondent some of which however do not appear to be related to the reasons for his dismissal.

1. He explains that he had always been told to get the job done with the resources they have and he carried people on the tines (the lifting forks) many times for the Respondent but when it was convenient to them they sacked him.

1. The Respondent says the Applicant was dismissed for misconduct in that he allowed another worker to be lifted and transported on the tines of the forklift he was operating.

1. The Respondent says the Applicant’s conduct, which he admits, was inherently unsafe and could have resulted in serious injury or death.

1. The Respondents says the Applicant’s contention that he was forced to carry the person on the forklift times because he was not provided with the correct equipment is untrue.

1. The Respondent details a process of having provided the allegations in writing to the Applicant on 5 December 2021 and suspending him on full pay. Writing to him again on 7 December 2021 providing more detail about the allegations and inviting him to provide a response. The Respondent says it wrote to the Applicant again on 13 December 2020 noting he had not responded and extending the timeframe for him to respond.

1. The Respondent says Mr Gosztyla did not provide any response to the allegations against him and the Respondent made its decision based on the information available to it which included CCTV footage.

1. The Respondent submits that it was entitled to dismiss the Applicant without notice on the grounds of serious misconduct however it chose instead to provide him two weeks payment in lieu of notice.

1. There clearly is a dispute between the parties as to critical matters which could only be assessed having heard from all the relevant witnesses at a hearing.

1. It is not the Fair Work Commission’s role when determining whether or not to grant extra time to an Applicant to file their application to conduct such a hearing.

1. Consequently, in these circumstances the merits of this application are a neutral factor in deciding whether there are exceptional circumstances that warrant an extension of time being granted.

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

1. 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

1. The onus is on the Applicant to persuade the Fair Work Fair Work Commission that a further period should be allowed for him to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.

1. Consequently, the Fair Work Commission is not empowered to extend time for the Applicant to make this application.

1. This application has been made out of time and so must now be dismissed. An order [PR739658] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

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