Soltan Hosseini v 3GS Truck Repairs Pty Ltd

[2024] FWC 1070

[2024] FWC 1070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Soltan Hosseini
v

3GS Truck Repairs Pty Ltd

(U2024/3566)

DEPUTY PRESIDENT COLMAN MELBOURNE, 24 APRIL 2024

Unfair dismissal application – whether to extend time – application dismissed

1. Soltan Hosseini (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). 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 application states that the dismissal occurred on 16 February 2024. The 21-day period ended on 8 March 2024. The application was lodged on 30 March 2024, several weeks out of time. In order for his application to proceed, the applicant requires an extension of time.

1. The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression found in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the following matters: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position.

1. As to the reason for delay (s 394(3)(a)), the applicant said that he was trying to settle the matter directly with the respondent, and also to have the respondent make certain outstanding payments, but the company was unresponsive and so he decided to lodge an unfair dismissal claim. This is not an acceptable or reasonable explanation for the delay, nor is it an exceptional matter. The reason for the delay weighs against an extension of time.

1. As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following: the applicant does not contend that he became aware of his dismissal after it took effect; there is no indication that he took other action to dispute his dismissal; there is no 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. These are neutral matters.

1. As to the merits (s 394(3)(e)), the applicant stated in his F2 application that his dismissal was unfair because he was dismissed without warning or notice despite having performed his duties diligently, and that he was not given an opportunity to address any performance concerns held by the company. The applicant also said that the respondent expected him to work overtime without payment, and put pressure on workers by underquoting jobs for clients. The respondent submitted that the applicant had been given warnings about not doing his job properly, and that he had spent too long doing certain tasks. The respondent said that it had paid the applicant all of his entitlements. The merits of this application would depend on factual findings made at the final hearing. Based on the information before me, I consider the merits to be 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 exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Hosseini for himself
K. Singh for the respondent

Hearing details:

2024
Melbourne
24 April

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