DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Michael Yee
v
Toll Transport Pty Ltd
(U2019/6044)

DEPUTY PRESIDENT BOYCE

SYDNEY, 18 FEBRUARY 2020

Application for an unfair dismissal remedy — application filed out of time —exceptional circumstances — reason for delay — representative error — where Applicant’s conduct explains delay — no exceptional circumstances — application dismissed

[1] On 31 May 2019, Mr Christopher Michael Yee (Applicant) lodged an application for unfair dismissal with the Fair Work Commission (Commission). The Applicant did so by lodging a Form F2 through the Commission’s website. The Applicant claims that Toll Transport Pty Ltd (Respondent) unfairly dismissed him from its employ on 18 April 2019.

[2] An application for an unfair dismissal remedy must be made within 21 days after a dismissal took effect (Statutory Deadline), or in such further time as the Commission may allow.¹ The Applicant acknowledges that he lodged his application 22 days outside of the Statutory Deadline. To be within time, the Applicant should have lodged his Application on or before 9 May 2019.

[3] On 8 October 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his application. Mr Len Anthony (Agent) appeared for the Applicant. Ms Fabiana James (Senior Manager - Employee and Industrial Relations) appeared for the Respondent. Given that Mr Anthony was not being paid to perform his role, and that Ms James is employed by the Respondent, I was not required to grant permission to either party to be represented.

[4] Having had regard to the evidence and submissions of both parties in this matter, I have determined that there are no exceptional circumstances that would enliven my discretion to grant an extension of time. Accordingly, the Applicant’s application for an unfair dismissal remedy is to be dismissed. My reasons for this decision are as follows.

Applicant’s evidence and submissions as to material facts

Evidence of Mr Christopher Michael Yee

[5] The Applicant tendered one witness statement in this matter (which, despite being titled “Outline of Submissions”, I take to be his witness evidence). The Applicant’s evidence-in-chief is as follows:

a) The Applicant is a 65-year-old Australian citizen of Fijian and Chinese heritage. In 1973, the Applicant migrated from Fiji to Australia. Since that time, the Applicant has always worked in the transport industry;

b) In 2003, the Applicant was employed by the Respondent as a driver/storeman. He has since remained in that role.

c) On 13 March 2019, the Respondent suspended the Applicant’s employment for a period of five weeks. The Applicant says that the suspension of his employment was because of a “genuine oversight” on his part, whereby the Applicant ‘overlooked’ that his driver’s licence had been suspended on the back of several traffic offences. Despite not being licenced to drive, however, the Applicant continued to carry out his duties as a driver for the Respondent;

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: [2020] FWC 482
Decision Date: 18 FEBRUARY 2020

CaseChat Overview and Summary

The case of Christopher Michael Yee v Toll Transport Pty Ltd concerned an application for an unfair dismissal remedy. The Applicant, Yee, sought relief for an alleged unfair dismissal by his former employer, Toll Transport Pty Ltd. The matter was heard in the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009 (Cth). The primary issue before the Commission was whether the Applicant's application for unfair dismissal remedy was filed out of time and, if so, whether there were exceptional circumstances to justify the delay.

The Commission was required to determine if the Applicant's application was indeed filed beyond the permissible time limits and, if so, whether the delay was due to exceptional circumstances. The Applicant argued that the delay was due to representative error. However, the Commission noted that the Applicant's own conduct contributed to the delay, and there was no evidence of exceptional circumstances to warrant an extension of time. The Commission found that the Applicant's representative error did not, by itself, constitute exceptional circumstances, especially given the Applicant's contribution to the delay.

The Fair Work Commission dismissed the application for unfair dismissal remedy. The Commission held that the application was indeed filed out of time and that the reasons provided did not amount to exceptional circumstances. As a result, the Applicant's application was dismissed. No further orders were made by the Commission, as the dismissal of the application concluded the matter.

Orders