DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olgierd Cherfi
v
Tabcorp Assets Pty Ltd T/A Tabcorp
(U2016/2263)

COMMISSIONER CRIBB

MELBOURNE, 20 SEPTEMBER 2016

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Mr Olgierd Cherfi (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Tabcorp Assets Pty Ltd t/a Tabcorp (the Respondent, Tabcorp) on 15 April 2016. The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] The application was lodged outside the statutory time limit, on 13 May 2016, seven days late. There was a hearing of Mr Cherfi’s extension of time application on 17 June 2016 and 20 July 2016. Mr Cherfi was represented by Mr C Agnew, solicitor whilst the Respondent was represented by Ms C Symons, of Counsel. Mr Cherfi gave evidence as did Ms B White, Human Resources Business Partner, Tabcorp and Ms C Davies, Infrastructure and Workplace Manager, Tabcorp.

[3] This decision deals with Mr Cherfi’s extension of time application.

Legislative framework

[4] Section 394 of the Act sets out the requirements for making an application and also the basis on which an extension of time may be granted. Section 394(3) is as follows:

“(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

(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] I will deal with each of the factors in turn.

Section 394(3)(a) - reasons for the delay

(a) Evidence

(i) Mr Cherfi

[6] Mr Cherfi gave evidence that:

He had never been disciplined by any of his previous employers. 1

When he commenced with Tabcorp, he was provided with a contract. 2

He telephoned Mr Agnew on 19 April 2016 and Mr Agnew asked him how many employees his employer had. He had replied eight. 3

During the telephone conversation on 19 April 2016, he did not believe that he was made aware that there was a time limit. 4 He was not aware, as at 6 May 2016, that the time limit for making an unfair dismissal had expired.5

He became aware of that after his discussion with Mr Agnew on 11 May 2016. 6

He did not believe that he had mentioned to Mr Agnew the name of his employer during the conversation on 19 April 2016. This conversation was quite ambiguous. He did not get any clear direction except to provide his contract. 7

Mr Agnew had asked him what his salary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 6726
Decision Date: 20 SEPTEMBER 2016

CaseChat Overview and Summary

In the case of Olgierd Cherfi v Tabcorp Assets Pty Ltd T/A Tabcorp, the applicant sought relief from an unfair dismissal. The matter was brought before the Fair Work Commission, which was tasked with determining the jurisdiction and the applicability of an extension of time for the application. The applicant argued that the dismissal was unfair and sought relief under the Fair Work Act 2009. Tabcorp contested the application on jurisdictional grounds and argued against granting an extension of time.

The central legal issues before the Commission were whether it had the jurisdiction to hear the application for relief from unfair dismissal and whether an extension of time was warranted. The Commission had to consider whether the application was filed within the prescribed time limits and whether exceptional circumstances existed that justified an extension. The applicant's arguments for jurisdiction were based on the provisions of the Fair Work Act, while Tabcorp contended that the application was untimely and that the Commission lacked the authority to entertain it beyond the statutory time frame.

In its decision, the Commission found that it did indeed have jurisdiction to hear the application for relief from unfair dismissal. The Commission noted that the application, although filed outside the usual time limits, was supported by evidence of exceptional circumstances that justified an extension. The Commission considered the applicant's explanation for the delay and the potential impact of the delay on the fairness of the dismissal process. After weighing these factors, the Commission concluded that it was appropriate to grant the extension of time, allowing the application to proceed on its merits.

The Commission's final orders included a ruling that it had jurisdiction to hear the application and that an extension of time was warranted. The application for relief from unfair dismissal was therefore permitted to proceed, with the parties directed to proceed with the substantive hearing on the merits of the case.

Orders