Fair Work Act 2009

s.394 - Unfair dismissal

P and J Mentiplay Investments Pty Ltd a/t/f Mentiplay Family Trust

[1] Mr Jordan Uhlhorn, the Applicant in this matter, was dismissed from his employment on 18 September 2012.

[2] He made an application to Fair Work Australia, as it was then, on 19 November 2012 alleging that he had been unfairly dismissed.

[3] The application was not made within 14 days and as a consequence was out of time.

[4] On 27 November 2012 a Notice of Conciliation was sent to the home address and email address of the Applicant.

[5] The matter was set down for conciliation on 10 December 2012.

[6] The Applicant did not participate in the conciliation conference and subsequently advised the Fair Work Commission that he had not received the Notice of Listing as he no longer had access to his email.

[7] On 2 January 2013 Directions and a Notice of Listing were sent to the home address and email address of the Applicant advising him that he was required by 18 January 2013 to provide to the Commission and the Respondent evidence and submissions in support of an application for an extension of time.

[8] The file discloses that on 3 January 2013 a conciliator explained these Directions to the Applicant.

[9] The Applicant did not file any documents in accordance with those Directions and did not contact the Commission in relation to this matter.

[10] On 23 January 2013 the Commission left a message for the Applicant to contact the Commission. The Applicant did not respond to that message.

[11] On 25 January 2013 an email was forwarded to the Applicant asking him to contact the Commission. The Applicant did not respond to this email.

[12] It should be noted that the email address used by the Commission was the email address that the Applicant had used to communicate with the Commission in the period between December 2012 and January 2013.

[13] On 28 January 2013 the Respondent made an application that the application be dismissed because of the failure of the Applicant to comply with the Directions.

[14] A non compliance hearing was listed for 9am on 1 March 2013.

[15] When this matter was called on at 9.00 am on 1 March 2013, the Applicant was not in attendance and a decision was in fact issued.

[16] The Applicant arrived at the Commission at 9.20 am and advised the Commission that he had been caught in traffic. The Applicant had made no attempt to advise the Commission prior to 9.00 am that he was likely to be late.

[17] Despite that, I decided to hear the Applicant's explanation as to why he was unable to comply with the Directions issued by the Commission.

[18] The Applicant advised that in the period since his dismissal, he had been suffering depression, his father had got out of jail and his grandfather had been seriously ill.

[19] The Applicant provided no independent evidence to the Commission of any of those matters and in fact made no attempt in the period between 18 January 2013 and 1 March 2013 to explain to the Commission his failure to comply with Directions.

[20] The Applicant's explanation for his failure to lodge his application in time was that he did not know that he had any remedy and he failed to comply with the directions because he did not know what he was required to do.

[21] Unfortunately ignorance of the law has not been found to be an exceptional circumstance under the Fair Work Act 2009 (the FW Act) in relation to the granting of an extension of time.

[22] Without more, I am unable to accept the Applicant's explanation for his failure to comply with Directions and his failure to comply with repeated attempts by the Commission to discuss with him his non-compliance and what steps he could take to ensure that he did in fact comply with his obligations as an Applicant in this matter.

[23] Pursuant to section 399A of the FW Act, the application for an unfair dismissal remedy is dismissed.

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