Aaron Cox v Epsa Pacific Pty Ltd - [2023] FWC 3289

[2023] FWC 3289

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Aaron Cox
v

EPSA Pacific Pty Ltd

(U2023/10613)

COMMISSIONER JOHNS

MELBOURNE, 8 DECEMBER 2023

Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed.

The following reasons for decision relate to my decision on 8 December 2023 to dismiss an application for an extension of time.[1]

On 27 October 2023, Mr Aaron Cox (Applicant), made an application to the Fair Work Commission (Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with EPSA Pacific Pty Ltd (Respondent).

The information provided by both the Applicant and the Respondent indicates that the application may have been made out of time.

Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

Section 394(2) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

Permission to appear

The Respondent sought to be represented in the matter. I heard from both parties on the question of representation before the Commission.

Having considered the submissions of the Applicant and the Respondent, I determined that it would not be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively.

Accordingly, at the hearing on 8 December 2023, both parties were self-represented.

Submissions

In addition to his Form F2 Application, the Applicant sent an email to the Commission explaining why he did not believe his application was out of time.

The Respondent filed a Form F3 and objected to the matter proceeding because the application was out of time.

When did the dismissal take effect?

It is not seriously in contention, and I so find, that the dismissal took effect on 5 October 2023.

When was the application made?

It is also not in dispute, and I so find, that the application was made on 27 October 2023.

Was the Application made within 21 days after the dismissal took effect?

As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect”.[2]

As I found above, the dismissal took effect on 5 October 2023. The final day of the 21 day period was therefore 26 October 2023 and ended at midnight on that day. As I found above, the application was made on 27 October 2023. Therefore, the application was made 1 day late.

Because the application was not made within 21 days of the date on which the dismissal took effect, I need…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 3289
Decision Date: 8 DECEMBER 2023

CaseChat Overview and Summary

Aaron Cox, an employee, lodged an application with the Fair Work Commission (FWC) against EPSA Pacific Pty Ltd, his former employer, under section 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy. The Commission was tasked with determining whether the application was lodged within the 21-day statutory timeframe, and if not, whether exceptional circumstances warranted an extension of time for filing. Commissioner Johns presided over the matter in Melbourne on 8 December 2023, dismissing the application on the basis that the circumstances were not exceptional.

The legal issues before the Commission were whether the application was filed within the prescribed 21-day period following the dismissal, and if not, whether there were exceptional circumstances to warrant an extension of time under section 394(3) of the FW Act. The factors considered in determining whether exceptional circumstances existed included the reason for the delay, the applicant's awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other persons in similar positions.

Commissioner Johns found that the dismissal took effect on 5 October 2023, and the application was lodged on 27 October 2023, making it one day late. The reason for the delay was the applicant's miscalculation of the 21-day period, which, although candid, did not constitute an exceptional circumstance. The applicant had the full benefit of the 21-day period to file the application but chose to wait until the miscalculated last day. Despite the applicant's email to the respondent disputing the dismissal, the merits of the application could not be assessed without a hearing of the evidence, making this factor neutral. The absence of prejudice to the employer and the issue of fairness to other persons in similar positions also weighed against granting an extension of time. Ultimately, the Commission was not satisfied that there were exceptional circumstances, leading to the dismissal of the application.

The final orders of the Commission dismissed the application for an unfair dismissal remedy, with no extension of time granted. Both parties were self-represented during the proceedings.

Orders