Aneessh Kumar v Clevercare Solutions - [2024] FWC 1293

[2024] FWC 1293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aneessh Kumar
v

Clevercare Solutions

(U2024/4045)

COMMISSIONER SCHNEIDER

PERTH, 16 MAY 2024

Application for an unfair dismissal remedy

Mr Aneessh Kumar (the Applicant) has made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he has been unfairly dismissed from his employment with Clevercare Solutions (the Respondent).

The information provided in the application indicates that the application may have been filed out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

The matter was listed for Hearing to determine the issue and the parties were directed to file materials.

The Applicant filed materials in compliance with the directions.

The Respondent did not file materials as directed.

The Respondent was afforded a further opportunity to file materials and warned that further non-compliance could result in the determination of the issue being made solely on the Applicant’s materials. The Respondent did not comply with the Commission’s further direction.

Subsequently, and upon review of the materials filed by the Applicant, the Hearing was vacated, and the parties were informed the determination would be made on the papers.

Dismissal date

Relevant Law

Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…
(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3)…”

As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

Upon review of the materials before the Commission, it appears that the dismissal took effect on 8 March 2024.

It is a matter of record that the application was made on 8 April 2024.

As noted above, the dismissal took effect on 8 March 2024. The final day of the 21-day period was therefore 29 March 2024 and ended at midnight on that day and the application was made on 8 April 2024. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Extension of time

Relevant law

Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period…

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 Aneessh Kumar v Clevercare Solutions

Details

AGLC: Aneessh Kumar v Clevercare Solutions [2024] FWC 1293
Case: [2024] FWC 1293
Decision Date: 16 MAY 2024

CaseChat Overview and Summary

Aneessh Kumar filed an application with the Fair Work Commission under section 394 of the Fair Work Act 2009, alleging that he was unfairly dismissed by his employer, Clevercare Solutions. The primary issue before Commissioner Schneider was whether Kumar's application was made within the statutory 21-day time limit, or if there were exceptional circumstances to warrant an extension. Kumar's dismissal was effective on 8 March 2024, and his application was lodged on 8 April 2024, clearly beyond the 21-day period. The Commissioner examined the circumstances surrounding the delay, considering factors such as the reason for the delay, Kumar's awareness of the dismissal, actions taken to dispute it, potential prejudice to the employer, the merits of the application, and fairness between parties. Kumar claimed the delay was due to awaiting his final payment, but this was not deemed exceptional. The merits of the application could not be assessed without a hearing. Ultimately, the Commissioner found no exceptional circumstances and dismissed the application for being out of time.

Orders