CITATION : 2012 WAIRC 00712 CORAM : COMMISSIONER S J KENNER HEARD : MONDAY, 23 JULY 2012 DELIVERED : MONDAY, 23 JULY 2012 FILE NO. : U 113 OF 2012 BETWEEN : LEON STEPHEN COHEN Applicant AND BILL DONESKI TRADING AS CLEAN IMAGE CLEANING SERVICES WA Respondent Catchwords : Industrial law (WA) - Alleged harsh, oppressive and unfair dismissal - Application referred outside of 28 day time limit - Principles applied - Commission satisfied that discretion should be exercised - Acceptance of referral outside of time granted. Legislation : Industrial Relations Act 1979 s 29(1)(b)(iii), s 29(3) Result : Application granted REPRESENTATION: Applicant : Mr L Cohen Respondent : No appearance 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1661 Case(s) referred to in reasons: Malik v Director General Department of Education (2004) 84 WAIG 683 Ex Tempore 1 By this application, Mr Leon Stephen Cohen alleges that on or about 20 April 2012 he was harshly, oppressively or unfairly dismissed by the respondent Clean Image Cleaning Services WA. The applicant told the Commission in evidence that he was employed as the General Manager. In that position he was obliged to overall conduct the affairs of the business. Mr Cohen was engaged under a written contract of employment dated 23 March 2012 and commenced employment on 27 March 2012. It appears on the evidence that Mr Cohen’s employment was short lived when, he informed the Commission, on or about 20 April he received a telephone call from the operator of the business Mr Doneski, who appears to have been representing the respondent employer. Mr Doneski informed Mr Cohen that he would not be able to continue to pay Mr Cohen his salary. Indeed, he informed him in that telephone conversation not to attend work anymore as he would not be able to pay him. Unsurprisingly, Mr Cohen took that as termination of his employment. 2 As I have indicated, Mr Cohen now claims that he was unfairly dismissed and seeks compensation by way of loss of earnings. As the application was filed some four days outside of the 28 day time limit prescribed by section 29(2) of the Act, the applicant seeks an extension of time to bring the claim under section 29(3) of the Act. The principles applicable to section 29(3) extension of time applications are well settled and I refer to the decision of the Industrial Appeal Court in Malik v Director General Department of Education (2004) 84 WAIG 683. In particular the observations of EM Heenan J at pars 73-74 of that judgement. 3 The applicant’s evidence is that the reason for the filing of the application being out of time is there was some doubt as to jurisdiction. He originally referred the matter, on his evidence, to the Fair Work Ombudsman. He was then informed that the matter should be referred to Fair Work Australia. An application was lodged online with Fair Work Australia, however, according to Mr Cohen he was subsequently informed by Fair Work Australia that the matter should be referred as he put it, to “the Department of Commerce”. Following a meeting and advice from them, Mr Cohen commenced proceedings in this jurisdiction, as I have said, some four days outside of the 28 day time limit established by the Act. 4 There is some doubt on the evidence as to the status of the respondent employer. The letter of appointment to which I have referred only refers to the business name of Clean Image Cleaning Services WA. There is no reference to any corporate entity standing behind that business name. The letter of appointment contains the signature purportedly of Mr Doneski on behalf of Clean Image Cleaning Services and he describes himself as “Director”. However in his evidence, Mr Cohen informed the Commission that in conversations he had with the Australian Securities and Investments Commission, he was advised the business of Clean Image Cleaning Services WA is a sole trader operation. Furthermore, that Mr Doneski has been banned from managing corporations and therefore, seemingly, could not purport to act as a director of any corporate entity. 5 On the basis of the evidence before me, which is not in any way challenged, I am satisfied that the applicant’s claim has some prospect of success. I am also satisfied on the evidence, on balance, even though there is an absence of documentary evidence, that the claim is within the Commission’s jurisdiction. I am also satisfied on the evidence that by reason of the steps taken by Mr Cohen he expeditiously challenged the termination of his employment but appears to have done so in alternative and the wrong jurisdictions. Given the relatively short period of time over which the extension is sought the Commission will exercise its discretion in Mr Cohen’s favour and accept the application out of time. The Commission will order that the time for filing of the application be extended to 22 May 2012. 2012 WAIRC 00713 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION