Brian Mason v Advance Logistics Pty Ltd

[2024] FWC 3190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brian Mason
v

Advance Logistics Pty Ltd

(U2024/11842)

DEPUTY PRESIDENT DEAN

CANBERRA, 20 NOVEMBER 2024

Application for an unfair dismissal remedy – extension of time not granted.

This decision concerns an application made by Mr Brian Mason (Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy involving his alleged dismissal from Advance Logistics Pty Ltd (Respondent).

Section 394(2) of the Act provides 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 application in the present matter was filed some 23 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.

The application was listed for hearing on 20 November 2024 to determine the extension of time issue. For the reasons given in transcript at the conclusion of the hearing, I am not satisfied that there are exceptional circumstances warranting an extension of time. Accordingly, the application for an unfair dismissal remedy is dismissed

An order giving effect to this decision is separately issued.

DEPUTY PRESIDENT

Appearances:

B Mason on his own behalf.
A Mak of Irwell Law for Advance Logistics Pty Ltd.

Hearing details:
2024.
By telephone:
November 20.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brian Mason, the applicant, has filed an application for an unfair dismissal remedy against Advance Logistics Pty Ltd, the respondent, under section 394 of the Fair Work Act 2009. The applicant alleges that he was unfairly dismissed from his employment. The application was submitted 23 days beyond the statutory 21-day period, necessitating an extension of time for the application to be considered by the Commission. The matter was heard via telephone on 20 November 2024 to determine whether the application for an extension of time should be granted.

The legal issues before the Commission were whether there were exceptional circumstances that would warrant an extension of time for the application and whether the delay in filing the application could be excused. The Commission had to assess the reasons provided by the applicant for the delay and determine if these reasons were sufficient to warrant an extension of time. The Commission also needed to consider whether the delay in lodging the application had caused any prejudice to the respondent.

The Deputy President, in concluding the hearing, found that the reasons provided by the applicant for the delay were not exceptional enough to warrant an extension of time. The reasons provided did not demonstrate that the delay was due to circumstances beyond the applicant's control, nor did they show that the delay had not caused any prejudice to the respondent. Therefore, the Deputy President was not satisfied that there were exceptional circumstances warranting an extension of time. Consequently, the application for an unfair dismissal remedy was dismissed.

The Commission issued an order giving effect to the decision, dismissing the application for an unfair dismissal remedy due to the failure to file the application within the statutory timeframe.

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