Christopher Reinschild v All West Concrete (Aust) Pty Ltd

[2015] FWC 2873

[2015] FWC 2873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Reinschild
v
All West Concrete (Aust) Pty Ltd
(U2015/3359)

COMMISSIONER RYAN MELBOURNE, 27 APRIL 2015

Application for relief from unfair dismissal.

[1] On 20 February 2015, Mr Christopher Reinschild (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant asserts that he was unfairly dismissed from his employment with All West Concrete (Aust) Pty Ltd (the Respondent). The Applicant states that his dismissal took effect on 28 January 2015. The application was therefore lodged 2 days outside the 21 days allowed by s.394(2)(a) of the Act.

[2] The Unfair Dismissals Team identified that the application was filed out of time and the application was referred for a jurisdictional hearing.

[3] The jurisdictional objection was originally listed for 2 April 2015 and directions were issued to the parties for the filing and service of material in relation to the extension of time. The Applicant was to file his material by 16 March 2015. The Respondent was to file its material by 23 March 2015.

[4] The Applicant subsequently made application for both an extension for filing his material and for an adjournment to the hearing date.

[5] In support of this application for an extension for filing and an adjournment of the hearing date, the Applicant filed a medical certificate dated 18 March 2015 which discloses that the Applicant has suffered a nervous breakdown due to his separation from his partner and subsequent loss of contact with his children, coupled with the loss of his job.

[6] Deputy President Gooley granted an adjournment on medical grounds and the matter was re-listed for hearing in relation to the extension of time on 1 May 2015.

[7] On 27 April 2015 my Associate contacted the Respondent to ascertain the Respondent’s position in relation to the out of time issue.

[8] The Respondent advised that it does not object to the Commission granting an extension of time.

[9] In this original application the Applicant identified that the reasons for the delay and why the Fair Work Commission should accept the application out of time were as follows:

“Have not been able to handle losing (sic) my 2 kids and a very messy break-up (sic), so therefore has taken a couple of weeks before being able to get my head the paper work required and info regarding unfair dismissal.”

[10] I am satisfied that the Applicant’ material before me that the state of mind of the Applicant following his dismissal was such that exceptional circumstances exist.

[11] I have also considered the fact that the extension sought is for a minimal period of only 2 days and that the Respondent does not hold any objection to the granting of an extension.

[12] Taking into account all the circumstances of this case and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act, I have decided to grant the Applicant an extension of time in relation to his application. An order will issue granting an extension and the matter will be referred for further consideration.

COMMISSIONER

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