DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Jessiman
v
Seymour Timber & Hardware
(U2016/3725)

COMMISSIONER BISSETT

MELBOURNE, 4 APRIL 2016

Application for relief from unfair dismissal - Extension of time application – Nothing unusual in time taken for mail delivery of application - Application dismissed

[1] Mr Christopher Jessiman has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Mr Jessiman was employed by Seymour Timber & Hardware (Seymour Timber). He commenced employment in October 2013 and his employment was terminated on 17 December 2016.

[2] Mr Jessiman’s application for unfair dismissal was received by the Commission on 11 January 2016, 25 days after the date the dismissal took effect and four days outside the statutory time specified in the Act required for filing a submission.

[3] Mr Jessiman filed a second Form F2 on 25 January 2015 providing some additional information that had not been provided in his first application.

[4] Mr Jessiman seeks an extension of time within which to make his application. Seymour Timber objects to the extension.

[5] Seymour Timber also says that Mr Jessiman filed a Notice of Discontinuance with respect to his application for unfair dismissal and that notice of discontinuance should stand such that there is no longer an application before the Commission.

[6] Before dealing with the notice of discontinuance I will consider the extension of time matter.

Extension of time

[7] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect. Mr Jessiman made his application 25 days after the date his dismissal took effect meaning his application was made four (4) days out of time.

[8] The Commission has the power, pursuant to s.394(3), to extend the time within which an application can be made if it 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

(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.

[9] I shall first consider each of these and then decide if exceptional circumstances exist.

Reason for the delay

[10] Mr Jessiman says that there was a delay in getting his application in on time because he needed to get some advice from friends and family including a lawyer friend. He says it was difficult getting in touch with people in the lead up to Christmas and he finally got the assistance he required soon after Christmas and the New Year.

[11] Mr Jessiman completed his application and signed it on 5 January 2016. He says he took it to the Post Office 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: [2016] FWC 1947
Decision Date: 4 APRIL 2016

CaseChat Overview and Summary

In the Fair Work Commission, the matter of Christopher Jessiman v Seymour Timber & Hardware involved an application by the applicant for relief from an unfair dismissal decision. The applicant, Jessiman, sought relief from a dismissal on the basis that the respondent, Seymour Timber & Hardware, had unfairly dismissed him. The application was for an extension of time, as Jessiman had not lodged the application within the requisite period. The dispute centred on whether the delay in lodging the application was due to exceptional circumstances or the applicant’s own neglect.

The primary legal issue for the Commission was whether the applicant could be granted an extension of time to lodge his application for relief from unfair dismissal. The applicant argued that the delay in lodging the application was due to exceptional circumstances, namely the time taken for mail delivery of the application. The respondent argued that the delay was due to the applicant’s own neglect and not due to any exceptional circumstances.

The Commission found that there was nothing unusual in the time taken for mail delivery of the application. The Commission noted that the applicant had not provided any evidence to support his claim that the delay was due to exceptional circumstances. The Commission also noted that the applicant had not lodged the application within the requisite period and that the delay was due to the applicant’s own neglect. The Commission dismissed the application for an extension of time.

The Commission ordered that the application for relief from unfair dismissal be dismissed. The Commission found that the applicant had not provided any evidence to support his claim that the dismissal was unfair. The Commission found that the respondent had followed a fair process in dismissing the applicant and that the dismissal was not harsh, unjust, or unreasonable.

Orders