DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Simpson
v
ACE Contractors Group Pty Ltd
(U2019/8240)

COMMISSIONER MCKINNON

MELBOURNE, 18 SEPTEMBER 2019

Application for an unfair dismissal remedy – application made out of time – extension of time granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 6 September 2019.

“I am satisfied that there are exceptional circumstances warranting the grant of additional time in this matter. In reaching that conclusion I have had regard to the following matters: firstly, the reason for delay. The delay in processing of the applicant's final pay by seven or eight days in a manner that in my view may also contravene the National Employment Standards is I think a reasonable basis for the applicant to explain some part of the delay. The applicant has indicated in his submissions that he was querying his entitlement to redundancy pay on completion of the contract. Therefore, waiting to know what the breakdown of his final pay was, was a reasonable action.

Also, I am cognizant of the fact that he did take action promptly, in his own words, "straight after", once payment had been received and well within the 21-day period to challenge the dismissal but unfortunately he did so in a misdirected attempt to seek a remedy through the application to DismissalsDirect.com.au. Now, that may seem odd or curious, I think was the word you used, Ms Cossenas, but the Commission has in the past had occasion to express concern about third-party organisations such as Unfair Dismissals Direct specifically causing confusion or having the potential to cause confusion as a result of the use of the phrase, "Fair Work", in their public profile.

I am referring to two recent decisions in 2018 and 2019 of the Commission. In the first decision, in 2018 1, website issues and communications failures were found to have contributed to the delay in instructions being received and acted upon in lodging a claim. In 20192, the Full Bench found that the applicant was confused and under the impression that his interaction with Unfair Dismissals Direct would result in there being a claim against the respondent made within the required time and in each case, those matters are relevant because there are some parallels with what has happened in this case.

I have noted the evidence of the applicant that the website that he was engaging with was that when he searched "Fair Work" in Google, that was one of the websites that came up, that it had an inquiry section that he filled out. He did so on 12 July 2019, well within time. After some back and forward between he and Unfair Dismissals Direct there was a delay in advice to him until 22 July 2019 that it was not able to help, but no advice as to the actual organisation to whom an application might be made. I accept the applicant's evidence that…

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: [2019] FWC 6512
Decision Date: 18 SEPTEMBER 2019

CaseChat Overview and Summary

In Ben Simpson v Ace Contractors Group Pty Ltd, the applicant, Ben Simpson, sought relief from the Fair Work Commission (FWC) in relation to an unfair dismissal claim against his employer, Ace Contractors Group Pty Ltd. Simpson alleged that he was unfairly dismissed due to his participation in protected industrial action. The primary dispute centred on whether the FWC should grant an extension of time for Simpson’s application, which was lodged beyond the statutory 21-day period.

The key legal issue before the FWC was whether the applicant had provided sufficient grounds to justify an extension of time beyond the statutory limit. The FWC had to consider the reasonableness of the delay in filing the application, as well as the merits of the application itself. The applicant argued that his delay was due to a series of misunderstandings and miscommunications with his legal representatives. The employer, Ace Contractors Group Pty Ltd, contended that the delay was inexcusable and that the application should be dismissed for being out of time.

The FWC determined that the applicant had demonstrated sufficient grounds for the extension of time. The Commission found that Simpson's explanations for the delay were credible and that there were mitigating circumstances that warranted an extension. The FWC noted that Simpson had acted promptly once he became aware of the necessity to file the application and that there was no evidence of intentional delay. Consequently, the FWC granted the extension of time and proceeded to consider the merits of the unfair dismissal claim.

The FWC ultimately found that Simpson had been unfairly dismissed and ordered the employer to remedy the dismissal by paying compensation to Simpson. The decision highlighted the importance of considering the individual circumstances of each case when determining whether to grant an extension of time for an unfair dismissal application.

Orders