Paroz v Cielo Publishing Pty Ltd

[2016] FWC 5283

[2016] FWC 5283

FAIR WORK COMMISSION

DECISION

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

Mr Matthew Paroz
v
Cielo Publishing Pty Ltd
(U2016/3207)

COMMISSIONER ROE MELBOURNE, 5 AUGUST 2016

Application for relief from unfair dismissal – extension of time.

[1] Mr Paroz was employed by Cielo Publishing from September 2014 until his dismissal on 2 May 2016. Mr Paroz gave notice to his employer on 18 April 2016 effective from 2 May 2016. Mr Paroz says that he was forced to resign because of the repeated failure of the employer to pay his entitlements properly and on time.

[2] Mr Paroz says that he had been in regular communication with the Fair Work Ombudsman (the Ombudsman) since March 2016 concerning late or non-payment of his entitlements and misleading representations. He says that he attempted to maintain good relations with his employer during the period following the dismissal because he was concerned that his entitlements would not be paid. The employer made promises to rectify the situation and this delayed the resolution of matters for 27 days after the termination. Communications with the employer on this issue occurred during the period from 17 May 2016 until 30 May 2016. Mr Paroz says that he then continued his contact with the Fair Work Ombudsman. On 30 June 2016 he raised the issue of unfair dismissal with the Ombudsman and they advised him to contact the Fair Work Commission. He then studied the Fair Work website information and decided to make an application which he then did quickly on 4 July 2016.

[3] Mr Paroz made his application on 4 July 2016. The application is therefore 41 days late.

[4] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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.

The reasons for delay

[5] The reason given for the delay is that Mr Paroz was attempting to maintain good relations with his employer whilst he resolved the issue of outstanding wages and entitlements. Given the history of non-payment and late payment Mr Paroz says that he had good reason to be concerned. Mr Paroz says that the period between the dismissal and 30 May 2016 is explained by this issue. The first few weeks he was waiting for payment and then in the next few weeks he was negotiating about the payment. He says that this is what the Fair Work Ombudsman advised him to do.

[6] However, this issue does not explain the period of the delay between 30 May 2016 and 4 July 2016. During that period Mr Paroz says that he was dealing with the Fair Work Ombudsman in respect to his entitlement concerns. Mr Paroz provided a log of interactions between himself and the Fair Work Ombudsman. 1 He contacted the Ombudsman on 30 May 2016 and lodged a complaint. He contacted the Ombudsman again on 8 June as he had not received a response from them. He was advised that he would be contacted soon. Then on 30 June 2016 the Ombudsman contacted him to discuss his underpayment complaint. It was only on 30 June 2016 that the Ombudsman suggested that he should contact the Fair Work Commission if he was concerned about constructive dismissal. The log of interactions with the Fair Work Ombudsman shows that this was the first time that Mr Paroz raised the issue of his dismissal and the possibility of contesting its validity. Mr Paroz confirmed that prior to 30 June 2016 he did not contest the dismissal with the Fair Work Ombudsman but was purely focused on the underpayment issues. Mr Paroz says that he contacted the Fair Work Commission that day and then he contacted Job Watch for assistance and lodged his application on 4 July 2016.

[7] There is no explanation for the period of delay between 30 May 2016 and 4 July 2016 which provides the basis for a finding of exceptional circumstance. I accept that Mr Paroz was unaware of the possibility of lodging an unfair dismissal application before 30 June 2016, but that lack of knowledge or advice is not something which is unusual.

[8] The reason for delay does not support a finding of exceptional circumstances.

The other factors

[9] It is not suggested that Mr Paroz was aware of the dismissal after it had taken effect. Mr Paroz resigned and gave two weeks’ notice. The period of notice means that Mr Paroz had additional time to prepare to make an application. In the circumstances of this case this factor stands against a finding of exceptional circumstance.

[10] Mr Paroz in his submission states that he did not contest the proposed dismissal at the time it occurred. He did not contest the dismissal at any time between the termination and the making of the application. Particularly given the length of the delay in this case I consider that this is a factor which stands against the finding of exceptional circumstances.

[11] The application was 41 days late. This is a substantial period. However, I am not satisfied that there is significant prejudice to the employer. This is a neutral factor.
[12] I have not had the opportunity to consider all of the evidence in this case. However, on the evidence and submissions of Mr Paroz it appears that the essential matter in this case will be whether or not Mr Paroz was forced to resign because of the actions of the employer. I can understand Mr Paroz’s distress at the failure of the employer to pay him properly and that failure could frustrate the employment relationship and leave Mr Paroz with no alternative but to resign. Mr Paroz’s case is not hopeless. I cannot reach further conclusions in respect to the merits as I have not heard all the evidence, including evidence from the employer. The merits of the case are a neutral factor in the circumstances of this case.

[13] This case depends upon its own particular facts. I do not consider that my decision would be disharmonious with other decisions about related matters. I do not consider there is any issue of fairness as between the person and other persons in a similar position.

Conclusion

[14] Considering all of the factors in Section 394 leads me to conclude that there are no exceptional circumstances which justify an extension of time in this case. The application is therefore dismissed. An order is issued separately.

COMMISSIONER

Appearances:

Mr M Paroz represented himself.

No appearance for the Respondent.

Hearing details:

2016

Melbourne

July 29

 1   Exhibit P1.

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