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  What’s Up by Charlie Bulos, Solicitor in Victoria

  Extension of time in unfair dismissal claim!
  This is an issue that can come over and over again in the workplace matters.
  Although we have numerous cases in the past or present, this issue of extension time when filing unfair dismissal claim or lawful termination is reasonably high in the scale of numbers.
  In the most recent decision by Full Bench (FB) of the Fair Work Commission (FWC) in Craig Fitzpatrick v TS & DE Cowcher Farms Pty Ltd t/a Derek Murray & Co. (C2015/4122) Sydney, 10 August 2015 reiterates the principle enunciated in GlaxoSmithKline Australia Pty Ltd. v Makin (2010) FWFB5343 atp23-27, 197IR266 in which it identified some of the considerations that may affect or attract the public interest.
  “… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decision at first instance so that guidance from an appellate court is required, or where the decision at first instance manifest an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decision dealing with similar matters.” Wan v AIRC (2001) 116 FCR, 481 at 30.
  Factual background
  On 23 June 2014, this applicant (Mr. Fitzpatrick) commenced to work as Truck Driver with respondent. On 27 January 2015 the applicant was involved in an accident and because of this he was on this spot terminated. The Operation Manager, Mr. David Hand said to him on the day of accident, “ you are through here”. The applicant replied, “I know”. Applicant’s argument is that, “he did not understand that Mr. Hand was terminating his employment.”
  It is noted that the applicant continued to attend to work on 2 February 2015. However, the decision record through Deputy President Gooley, indicated at paragraph 20, that she accepted that he was terminated on 27th January 2015 and in subsequent paragraph said she did not accept that he did not understand it and did not contact the employer under2 February 2015. Although in the FB the applicant said there was communication with his inability to work due to his medical conditions.
  The application for unfair dismissal or general protection dispute has to be filed 21 days from termination of services, however if there is any delay, the FWC can extend it under section 394 (3) of the Fair Work Act (2009) {‘the Act’). He lodged his application 42 days late or beyond the 21 days allowed under the law.
  Mr. Fitzpatrick says, there was delay, he wanted to see if he was going to be paid his entitlements for making the application, he thought the timeline is 28 days not 21 days, he experienced difficulty with the card payment, which the online services failed to accept credit cards.
  One of the factors to consider whether or not the employer was prejudice with the delay under section 394 (3) (d) and found that one of the people involved in the accident was no longer employed by the respondent and consequently there will be prejudice if an extension of time is given.
  The FB acting on appeal under section 400 of the Act, needs to consider the public interest issue and whether or not there is significant error of fact in the decision.
  The applicant made an appeal on the ground of significant error of fact, his allegation that he was not terminated on 27th January 2015 and that the employer should have given him written notice of termination and thinks that it is totally unconscionable to say ‘you are through’ after an accident.
  Further alleged that it was not true that he did not contact the employer between 27 January 2015 and 2 February 2015 he pointed his incapacity to attend his work. This is found in his witness statement.
  At paragraph 29, the FB said, “an appeal is not an opportunity to conduct, before the Full Bench, the case that the appellant wishes they had conducted before the member at first instance.” This is very true. There are other grounds of appeal, but it did not convince the FB to reconsider its position.
  Furthermore, the FB said it is not satisfied that the appeal raises an issue of importance and or general application, is in class where is diversity of decisions at first instance so that guidance from an appellate bench is required and that the decision at first instance did not manifest an injustice and was not consistent with other decisions. Hence, the permission to appeal is not granted.

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  What's up by Charlie Bulos, Solicitor in Victoria

  Updating credit profile…
  The Financial Ombudsman Services (FOS) is the first ‘port of call’ to make the necessary complaint just to avoid expensive litigation and with this we can collate the evidence generated from this action or proceedings.
  In the Dispute with Citigroup Pty Ltd (Case No. 346762) the FOS outlines the details of its determination and the Determination by FOS on the issues the parties raise.
  The Facts:
  The complainant is not identified to protect her privacy and can be called Celia.
  Celia is credit card holder with built in insurance proposal with the application when she signed it and in case of financial difficulty arises the credit card holder is protected from paying which Celia signed and agreed. In the course of time and after losing her weekly payments she defaulted and applied for insurance claim. Her claim was refused claiming that she has pre-existing condition and did not warrant paying her claim. Although she has valid claim that the pre-existing defense is not true, for some reason she did not pursue.
  In December 2009, the Citigroup Pty Ltd entered into agreement and Celia was allowed to pay the account instead of the original amount she was allowed to pay less. Celia agreed and settled the account with a note that the default listing with credit reporting agency had to be updated. The update of the credit default was not done and until 2013 this default listing was not updated.
  Further application for finance or loan of Celia was declined not knowing was the reason. Finally, she found that this default listing is still there and holding approval all her credit applications.
  Issues:
  Was the continued default listing accurate and up to date? The issue of embarrassment from being declined, is this part of the determination? The issue of document request?
  Under the Privacy Act, a financial services provider (FSP) has obligation and must take reasonable steps to ensure the personal information it collects, uses or discloses is accurate. This did not occur and this FSP is obliged to update it when Celia settled the account. This means the default listing was inaccurately recorded on Celia’s credit file for 4 years.
  Celia said that FSP failure to update the default listing prevented her from obtaining other loans. Celia listed all her applications which were declined.
  The Ombudsman claims that when FSP failed to update the default listing Celia suffered considerable embarrassment. Celia credit file was accessed 10 times.
  In the issue of document request, the Ombudsman says Celia is entitled to be provided with documents she requested. When Celia requested documents to support her claim and did not get them the FSP or Citigroup is in breached of clause 13 of the Code of Banking Practice.
  Conclusion:
  In view thereof, the Ombudsman decided in favor of Celia allowing her compensation of $2,200 for those neglect or omission made.