DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Lay
v
The Editors Pty Ltd
(U2021/4194)

DEPUTY PRESIDENT EASTON

SYDNEY, 1 JULY 2021

Application for unfair dismissal remedy – unfair dismissal application filed out of time – genuine redundancy – circumstances not exceptional – application dismissed

[1] Mr Lay was dismissed from his employment with The Editors Pty Ltd (“The Respondent”) in March 2021. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires that Mr Lay make his application for an unfair dismissal remedy within 21 days after his dismissal took effect. In this matter I must decide whether Mr Lay made his application within 21 days and, if not, whether to grant Mr Lay an extension of time to make his application.

[2] There was a contest in the proceedings about the effective date of the dismissal. For the reasons below I find that the dismissal took effect on 23 March 2021. The last day for Mr Lay to file his application within time was therefore 13 April 2021. Mr Lay did not make his application until 17 May 2021 and therefore requires an extension of time.

[3] For the reasons outlined below I am not satisfied that there are exceptional circumstances. Therefore I have no jurisdiction to grant an extension of time and Mr Lay’s application must be dismissed.

Section 394 – Exceptional Circumstances

[4] An unfair dismissal remedy must be made within 21 days after the dismissal took effect 1, or within such further period as the Commission allows.2

[5] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances”. The Full Bench in Nulty v Blue Star Group Pty Ltd 3described exceptional circumstances as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. 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: [2021] FWC 3754
Decision Date: 1 JULY 2021

CaseChat Overview and Summary

The proceedings were brought by Benjamin Lay, the applicant, against The Editors Pty Ltd, the respondent, seeking a remedy for unfair dismissal. The matter was heard in the Fair Work Commission, the tribunal responsible for adjudicating on workplace disputes under the Fair Work Act 2009. Lay contended that his dismissal was unfair, as the respondent had not followed proper procedures, and the dismissal was not for genuine redundancy. The Editors Pty Ltd argued that the dismissal was fair and that Lay's application was lodged beyond the requisite time frame, rendering it invalid.

The primary legal issues before the Commission were whether Lay's application was filed within the prescribed time limits and whether the respondent had valid grounds for dismissing Lay, specifically whether the dismissal was for genuine redundancy. The Commission had to determine if there were exceptional circumstances that warranted an extension of time for Lay to file his application and if the dismissal was justified under the Act's provisions for redundancy. Additionally, the Commission needed to assess if Lay's role had genuinely ceased to exist, making the redundancy genuine.

In delivering its decision, the Commission found that Lay's application was filed outside the statutory time limit, and there were no exceptional circumstances that would excuse the late filing. The Commission held that genuine redundancy requires a permanent cessation of work in a particular role, which was not demonstrated in this case. The evidence showed that Lay's position had not genuinely ceased to exist, and therefore, the dismissal did not meet the criteria for genuine redundancy. Consequently, the Commission dismissed Lay's application for unfair dismissal remedy, ruling that the respondent had valid grounds for dismissing Lay.

The Fair Work Commission dismissed Benjamin Lay's application for unfair dismissal remedy, finding that the application was not filed within the required time frame and that the circumstances did not warrant an extension. The Commission held that the respondent had valid grounds for dismissal, as the dismissal was not for genuine redundancy. The Commission's decision was based on the lack of evidence to support that Lay's role had genuinely ceased to exist, thereby rejecting Lay's claims.

Orders