Tan Chin Hoe v Quick Corporate Australia Pty Ltd T/A Salmark Promotions

[2013] FWC 7932

[2013] FWC 7932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tan Chin Hoe
v
Quick Corporate Australia Pty Ltd T/A Salmark Promotions
(U2013/10665)

DEPUTY PRESIDENT MCCARTHY PERTH, 10 OCTOBER 2013

Application for relief from unfair dismissal - Jurisdictional objection.

[1] On 18 June 2013 Mr Tan Chin Hoe (the Applicant) made an application for unfair dismissal remedy (the application) pursuant to s.394 of the Fair Work Act 2009 (the FW Act).

[2] The application states that the Applicant’s dismissal by Quick Corporate Australia Pty Ltd (the Respondent) took effect on 11 January 2013. The application was therefore not made within 21 days after the dismissal took effect and some five months after the time allowed.

[3] The Respondent objected to a further period being allowed for the application.

[4] I wrote to the Applicant on 20 August 2013 requesting him to provide me with information in order that it could be consider whether exceptional circumstances existed for an extension of time for the application to be allowed. The Applicant respondent by e-mail on 30 August 2013.

[5] Section 394(3) of the FW Act provides for the matters to be taken into account in determining whether exceptional circumstances exist in matters of this nature.

[6] The Applicant submitted that he did not know that he could make an application as he was a migrant and in his culture and background protections such as those provided in the FW Act were not available. He also explained that he was sick and depressed due to the dismissal and in a state of shock and disbelief. The Respondent disputes the Applicant’s claims in this regard and asserts that he was fully aware of his rights as an employee.

[7] The Applicant was aware of the dismissal on the date of the dismissal.

[8] The Applicant did not dispute his dismissal until the lodging of this application. The Applicant says that he did seek an exit interview and that instead of disputing his dismissal he decided to use his time and energy endeavouring to obtain other employment. The Respondent however asserts that a letter was sent to the Applicant inviting him to contact the Respondent for an exitt interview however that request was not replied to by the Applicant within the time allotted for that response of seven days.

[9] Whilst detailed grounds opposing the allowing of the application from the Respondent was not sought it is clear from their correspondence that there would be prejudice caused as at least one of the supervisors/manager involved in the decision to dismiss the Applicant was no longer employed.

[10] I am not able to make any assessment of the merits of the claim as no submissions were made about this criterion, however, the extent of the delay and the reasons provided for it incline me to the view that it would not be fair as between the Applicant and other persons in a similar position to allow the application.

Conclusion

[11] I am prepared to accept that the Applicant was partly ignorant of the provisions of the FW Act and its time limits. However, he does not appear to have made any effort until some five months after his dismissal to lodge an application. The catalyst for that action appears to have been him becoming aware of actions other persons who were dismissed at the same time took in regard to their dismissal.

[12] In all the circumstances I am not satisfied that there are exceptional circumstances that exist and therefore will not allow the application.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 30 August 2013

Respondent, 8 September 2013

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