Sina Tavakolimehr v Hatch Pty Ltd

[2024] FWC 1967

[2024] FWC 1967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sina Tavakolimehr
v

Hatch Pty Ltd

(U2024/7549)

DEPUTY PRESIDENT COLMAN MELBOURNE, 25 JULY 2024

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Sina Tavakolimehr (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Hatch Pty Ltd (respondent) objects to the application because it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant was dismissed on 6 June 2024. The 21-day period ended on 27 June 2024. The application was lodged on 1 July 2024. For the application to proceed, the Commission must extend time. It may do so only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f).

1. As to the reason for the delay (s 394(3)(a)), the applicant said that following his dismissal he experienced stress and anxiety for which he sought professional advice, and that he came down with the flu. The applicant also said that he was looking for legal advice. However, I do not accept that these matters prevented or seriously impeded the timely lodgement of an application. These matters do not constitute a reasonable or acceptable explanation for the delay. As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following: the applicant does not claim to have become aware of the dismissal after it took effect; there is no indication that the applicant took action to dispute the dismissal; there is no apparent prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people in a similar position. In the latter regard, I do not accept the applicant’s contention that his situation is ‘less fair’ than those of other employees. These are all neutral matters.

1. As to the merits (s 394(3)(e)), the applicant submitted that his dismissal was unfair because it was not a case of genuine redundancy, as the respondent claimed. He said that he was fully utilised for many months, that his job and skills were still needed, and that he had more skills than other employees but despite this his requests for redeployment were ignored. He said that the respondent did not properly consult with him as required by the relevant award and that he was deprived of an opportunity for training and upskilling. The respondent submitted that the dismissal was not unfair because the applicant’s position was simply not needed and that the dismissal was indeed a case of genuine redundancy as defined in the Act. The merits of the application would depend on factual findings made at a final hearing. In my view they are a neutral consideration.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are any exceptional circumstances in this case. Consequently, I have no power to extend time. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Tavakolimehr for himself
A. Milner for Hatch Pty Ltd

Hearing details:

2024
Melbourne (by telephone)
25 July

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