Application to deal with contraventions involving dismissal — request for extension of time to file application — each individual reason for delay is unexceptional — totality of reasons for delay are unexceptional — where applicant initially pursued an unfair dismissal claim — where applicant discontinued unfair dismissal claim after conciliation of that claim had occurred, and after unfair dismissal claim had been programmed for arbitration — no jurisdictional objection to unfair dismissal claim — where applicant also pursued an unlawful dismissal application but discontinued same — where applicant then filed a general protections claim 75 days out of time - employer visited by prejudice in having to engage with and defend multiple claims in respect of the same dismissal — where there are no exceptional circumstances to enliven discretion to grant extension of time — application dismissed.

[1] On 28 January 2020, Mr Alexander Mirow (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by emailing a Form F8 to the Commission’s Registry in Sydney (GP Application). The Applicant alleges that his employment with Suez Pty Ltd (Respondent) was terminated (by the Respondent) on 24 October 2019 contrary to Part 3-1 of the Act.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect.

[3] The Applicant acknowledges that he lodged his GP Application 75 days outside of the statutory time limit. To be within time, the Applicant should have lodged his GP Application on or before 14 November 2019.

[4] On 25 March 2020, I convened a hearing (by telephone) to determine whether to allow the Applicant an additional period within which to lodge his GP Application. I have determined that that there are no exceptional circumstances that would enliven my discretion to grant the Applicant an extension of time to file his GP Application. Accordingly, the application must be dismissed. My reasons for this decision follow.

Matters to be taken into account

[5] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366. Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application;…

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.

Continue reading Alexander Mirow v Suez Pty Ltd

Details

AGLC: Alexander Mirow v Suez Pty Ltd [2020] FWC 1660
Case: [2020] FWC 1660
Decision Date: 3 APRIL 2020

CaseChat Overview and Summary

The case of Alexander Mirow versus Suez Pty Ltd involves an application by the applicant, Mr Mirow, seeking an extension of time to file an application to deal with contraventions related to his dismissal. The matter was heard in the Fair Work Commission. The primary issue for the Commission was whether to grant the applicant's request for an extension of time, considering the totality of reasons provided for the delay in filing the application.

The Commission examined the various reasons given by Mr Mirow for the delay in filing the application. Initially, Mr Mirow had pursued an unfair dismissal claim which he later discontinued following conciliation and after the claim had been scheduled for arbitration. Although there was no jurisdictional objection to the unfair dismissal claim, Mr Mirow had also pursued an unlawful dismissal application which he subsequently discontinued. He then filed a general protections claim 75 days out of time. The Commission found that each individual reason for the delay was unexceptional, and when considered together, the totality of reasons did not present any exceptional circumstances warranting an extension of time. The employer, Suez Pty Ltd, had already been prejudiced by having to engage with and defend multiple claims in respect of the same dismissal.

The Commission dismissed the application for an extension of time. The reasoning was that while there were no exceptional circumstances to justify an extension, the employer had already suffered prejudice due to the multiple claims filed by the applicant. Consequently, the Commission concluded that granting the extension would not be appropriate. As a result, the application was dismissed, and no further orders were made beyond the dismissal of the application for an extension of time.

Orders