Sin San Tan v Osscomp Pty Ltd

[2014] FWC 3953

[2014] FWC 3953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sin San Tan
v
Osscomp Pty Ltd
(U2014/6018)

COMMISSIONER WILLIAMS PERTH, 11 JULY 2014

Termination of employment - extension of time.

[1] Mr Sin San Tan (Mr Tan or the applicant), the applicant in this matter has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Osscomp Pty Ltd.

[2] Mr Tan was dismissed on 25 February 2014. The application was made on 27 March 2014.

[3] The application has been lodged 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.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in section 394 of the Act 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] Submissions have been provided by Mr Tan regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] Mr Tan explains that his main priority was to get a new job straight away and that he did not know that this application must be made within 21 days after the dismissal took effect.

[7] He was diagnosed with type II diabetes.

[8] He applied for a new start allowance with Centrelink on 4 March 2014.

[9] He had a gallstone operation on 14 March 2014 and was discharged on 15 March 2014.

[10] He had a serious car accident on 30 March 2014.

[11] He was diagnosed with lower back pain on 16 April 2014.

[12] These last two reasons for the delay are events which occurred after the application was made so these simply are not relevant.

[13] Turning to consider the reasons for delay as explained by Mr Tan the fact that he chose to focus on getting a new job rather than making this application is not an acceptable reason for any part of the delay. Similarly it is well established that being unaware of the requirement to make the application within 21 days of dismissal is not an acceptable reason for delay.

[14] There is no evidence on which it could be concluded that being diagnosed as having diabetes and applying to Centrelink for new start allowance prevented Mr Tan from making this application.

[15] I accept that undergoing the gallstone operation, which had been identified in January 2014 as being necessary, would have incapacitated Mr Tan for two days and that for this period he would not have been able to make this application.

[16] Consequently I am not satisfied that acceptable reasons for all of the delay in making this application have been provided by Mr Tan.

Any action taken by the person to dispute the dismissal

[17] There is no evidence that the applicant or any other action to dispute the dismissal.

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

[18] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[19] There is limited information regarding the merits of this application and consequently this would be a neutral factor in determining the application to extend time.

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

[20] This is not a relevant factor in this matter.

Conclusion

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

[22] I have considered the information provided and the submissions. In this case there are not acceptable reasons for the full delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[23] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

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

COMMISSIONER

Final written submissions:

Applicant, 12 May 2014

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