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.
What’s Up by Charlie Bulos, Solicitor in Victoria
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What’s Up by Charlie Bulos, Solicitor in Victoria 30 years waiting period for Parent’s visa. Regional areas need workers!
The Department of Immigration and Border Protection (DIBP) is very unhelpful with the parents wanting to migrate or join later with children. This is appalling government action or policy direction. 30 years is hard to comprehend how they can live that long for many. If the Abbott government relies on this as good governance, then we are sorry to say, your policy direction or attitude towards this particular visa category is not going to work. You are doomed to lose your ambition to continue your regime. A regime of uncertainly, ineffective governance and a regime of utter shame!
Further to this immigration tale, Migration Alliance through Liana Allan and Kristie Morgan has come up with the story of current need for workers in regional parts of the country posted online on 17th July 2015. They likewise commented that a change is needed to adapt DIBP policy consistent with its needs to make it fair and attractive to those potential workers and potential employers in regional areas.
It says and I quote entirely, “Regional employers are crying out for workers in regional areas. Regional Victoria is experiencing a lack of local talent in the following areas:
1. Hospitality - chefs and cooks
2. Diesel Mechanics
3. Fish Filleters
4. Farm workers in fruit and vegetable picking, planting and cultivation
5. Truck drivers (HGV and LGV)
Currently, the area of Gippsland, Victoria is struggling with ANZSCO codes in the agriculturual industry, as they are not reflective of the actual tasks and duties performed. Regional employers believe that ANZSCO is being applied inflexibly by DIBP case officers.
One example is the occupation of ‘Nurserypersons’ where the DIBP are restricting the applicants to ‘retail nurseries’. The first line of the occupation description in ANZSCO states:
NURSERYPERSONS propagate and cultivate trees, shrubs, and ornamental and flowering plants in plant nurseries.
DIBP case officers are applying ‘plant nurseries’ and adding in the concept of RETAIL to the definition, which knocks out persons who work in non-retail environments. The ANZSCO definition for nurserypersons does not state ‘retail’ in its definition.
By adding in the requirement for the position to be performed in a retail work environment, this restricts regional applicants to working in a ‘retail environment’. Let’s get a little bit real here. How many retail nurseries are there going to be in regional and rural Australia? Retail nurseries do not provide us with our fruit and vegetables. Wholesale nurseries do. Both require the same skill-sets. The bottom line is that the ANZSCO code for nurserypersons does not state that a person needs to work in retail. There are persons who work in large wholesale nurseries and on farms who propagate the plant from the start to the finish. Not anyone can just look after fruit and vegetables.
Now let’s have a look at the occupations of Chef or Cook. If an overseas national Chef would like to apply for direct entry RSMS then at the moment they need to score 6 in each of the 4 bands on the IELTS test. A chef who is applying for direct entry should not need 6 in each band. They commonly don’t need that level of English. Employers in regional areas are struggling to find people who can score this level of English. There is no incentive for chefs and cooks to look outside city areas if the IELTS test levels for rural and regional areas are exactly the same. If the whole purpose is to drive skilled workers to regional areas then the IELTS test for RSMS should be the same as the IELTS test for 457 visas in regional areas. At least that way there would be some consistency for regional and rural employers and their employees. If workers score less than IELTS band 6,6,6,6 then potentially they could move outside the metropolitan areas and score slightly less on the IELTS, applying for positions in regional and rural areas. There is currently no incentive for workers to move away from city and metropolitan areas”.
For those interested you can focus on those works or occupations listed on skilled occupation lists (SOL) or those in consolidated list. Find someone else who can help you go through the puzzle or maze. -
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.
