DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Albert Barkho
v
Aussie Traveller Pty Ltd
(U2020/9088)

COMMISSIONER BISSETT

MELBOURNE, 20 JULY 2020

Unfair dismissal application filed out of time –circumstances exceptional - extension of the time for filing allowed.

[1] This decision concerns an application by Mr Albert Barkho (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant’s employment with Aussie Traveller Pty Ltd (Respondent) was terminated with effect from 4 June 2020. The unfair dismissal application was lodged on 2 July 2020.

[3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 25 June 2020. The application was therefore filed 7 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[5] Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

[7] Both the Applicant and Respondent were given permission to be represented in the proceedings.

Reason for the delay

[8] The FW Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay…

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: [2020] FWC 3792
Decision Date: 20 JULY 2020

CaseChat Overview and Summary

Albert Barkho, the applicant, brought a claim against Aussie Traveller Pty Ltd, the respondent, for unfair dismissal in the Federal Circuit and Family Court of Australia. The central issue was whether the applicant's application for unfair dismissal, filed beyond the statutory time limit, could be accepted as timely due to exceptional circumstances warranting an extension. The respondent argued that the application was invalid because it was lodged outside the prescribed period, while the applicant contended that the delay was due to exceptional circumstances.

The court was required to determine whether the exceptional circumstances exception applied, allowing the late filing of the unfair dismissal application. It examined the reasons for the delay and whether the applicant demonstrated a diligent approach in pursuing their rights. The court considered the legal framework under the Fair Work Act 2009, which provides for the extension of time in cases of exceptional circumstances. It assessed the evidence provided by the applicant regarding the reasons for the delay and the steps taken to mitigate the consequences of the delay.

The court found that the applicant's explanation for the delay was credible and that the circumstances were indeed exceptional. The applicant had acted promptly once they became aware of the need to file an application and had taken reasonable steps to ensure that their rights were not prejudiced. The court concluded that the application was filed within a reasonable time under the exceptional circumstances exception. It granted the applicant permission to proceed with the unfair dismissal application despite the late filing.

In its decision, the court ordered that the applicant's unfair dismissal application be accepted as timely, allowing the matter to proceed on its merits. The court emphasized the importance of applicants promptly seeking to enforce their rights and the need for clear and compelling evidence of exceptional circumstances to justify a late filing.

Orders