Benjamin Eustace v Diverse It Pty Ltd

[2014] FWC 6787

[2014] FWC 6787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Eustace
v
Diverse IT Pty Ltd
(U2014/12129)

COMMISSIONER WILLIAMS PERTH, 2 OCTOBER 2014

Termination of employment - extension of time.

[1] Mr Benjamin Eustace (Mr Eustace or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Diverse IT Pty Ltd (the respondent).

[2] Mr Eustace was dismissed on 8 August 2014. The application was made on 30 August 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to grant a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[5] Mr Eustace was requested to provide evidence and submissions by 24 September 2014 for the Commission to determine whether there where exceptional circumstances in this case. This correspondence was sent by email and post but no response has been received.

Are there exceptional circumstances?

The merits of the application

[6] There is limited information regarding the merits of Mr Eustace’s application which is opposed by the respondent. Consequently the question of merit is a neutral factor for the determination of the extension of time question

Conclusion

[7] The onus is on the applicant to persuade the Commission a that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. No information has been provided to the Commission by the applicant. There is nothing before the Commission that supports a finding that in this case there were exceptional circumstances.

[8] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[9] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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