DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dan Beard
v
Valley Industries Limited
(U2020/10084)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 26 AUGUST 2020

Unfair dismissal application filed out of time – exceptional circumstances – discretion exercised to extend time.

Introduction

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

[2] The Applicant’s employment with Valley Industries Limited (Respondent) was terminated with effect from 8 May 2020. The unfair dismissal application was lodged on 23 July 2020.

[3] Section 394(2) of the 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 29 May 2020. The application was therefore filed 55 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 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] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) 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.

[7] 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.

Reason for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does…

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 Beard v Valley Industries Limited

Details

AGLC: Beard v Valley Industries Limited [2020] FWC 4523
Case: [2020] FWC 4523
Decision Date: 26 AUGUST 2020

CaseChat Overview and Summary

In the case of Beard v Valley Industries Limited, the Fair Work Commission was called upon to consider an application for unfair dismissal that was lodged beyond the statutory deadline. The applicant, Mr Beard, sought to have his unfair dismissal claim considered despite the delay in filing. Valley Industries Limited opposed the application on the basis that the late filing was not justified and should not be excused.

The primary legal issue before the Commission was whether the delay in filing the application was so significant that it should be excused under the concept of 'exceptional circumstances'. The Commission had to determine if there were compelling reasons for the delay that warranted an extension of the time limit for filing the application. This required a consideration of the circumstances surrounding the delay, including any factors that might have contributed to the late filing.

The Commission concluded that the delay, while significant, was not insurmountable and that there were exceptional circumstances present that justified an extension of time. The Commission found that Mr Beard had a reasonable explanation for the delay and that there were extenuating factors that contributed to his inability to file the application within the statutory period. As a result, the Commission exercised its discretion under the Fair Work Act to extend the time for filing the application, allowing the unfair dismissal claim to proceed. The Commission's decision was based on a careful consideration of the evidence and the principles of fairness and equity.

The final orders of the Commission included an extension of time for the filing of the unfair dismissal application and a direction that the application be listed for further proceedings. The Commission's decision recognised the importance of ensuring that the principles of fairness and justice are upheld, even in cases where procedural rules have been breached.

Orders