DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher William Blair
v
Aurizon Operations Ltd
(U2021/6111)

DEPUTY PRESIDENT BEAUMONT

PERTH, 20 AUGUST 2021

Application for an unfair dismissal remedy – Jurisdictional objection – Application lodged out of time.

[1] Mr Christopher Blair (the Applicant) applied for an unfair dismissal remedy after his employment with Aurizon Operations Ltd (the Respondent) came to an end. His application was filed with the Fair Work Commission on 13 July 2021. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) sets a 21-day timeframe in which an unfair dismissal application must be filed. The Applicant submits that his dismissal took effect on 28 June 2021, and therefore, his application was made within time. However, the Respondent disagrees, purporting that the Applicant’s dismissal took effect on 18 June 2021, and therefore, the application was filed four days late.

[2] If the application is to now proceed, it is necessary for the Applicant to show that his application was made within time, or if it was not made within time, to show that there are exceptional circumstances that warrant an extension of time in which to make the application and that it is fair and equitable for the extension to be granted.

[3] Whilst the parties were informed that the purpose of the hearing was to determine the abovementioned issues, the parties also drew the Commission’s attention to the Respondent’s jurisdictional objection premised upon the high income threshold. The Respondent argues that the Applicant enjoyed annual earnings above the high income threshold and so is excluded from making this application by virtue of s 382(b)(iii). The issue is examined within the decision, albeit even if the Applicant fell afoul of this threshold point, contemplation of whether he was covered by a modern award would remain necessary. Neither party advanced oral submissions on this point.

[4] However, further explanation of this issue proves unnecessary. In short, I have determined that the application was not made within the requisite time and that in all of the circumstances granting an extension of time in which to make the application, is unwarranted. The application is therefore dismissed. My reasons follow.

1 Background

[5] As noted, the threshold issue to first be determined is the date that the Applicant’s employment ceased. It is therefore useful at the outset to summarise in broad terms the history of the Applicant’s employment with the Respondent to assist an understanding of the arguments agitated by the parties before this Commission.

[6] The Applicant was employed as a Superintendent of Track. In this position he was responsible for the safe condition of the Respondent’s rail track, civil and associated infrastructure in Western Australia and New South Wales. 1

[7] The Respondent business considered it a senior management position requiring the Applicant to manage the leadership of a team of Construction and Maintenance Supervisors and Track Infrastructure Inspectors, in addition to managing maintenance contractors, preparing and monitoring budgets,…

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 4887
Decision Date: 20 AUGUST 2021

CaseChat Overview and Summary

The case of Christopher William Blair versus Aurizon Operations Ltd involved an application for an unfair dismissal remedy. The applicant, Blair, sought to challenge his dismissal by the respondent, Aurizon Operations Ltd, on the basis of unfairness. The matter was heard in the Fair Work Commission, Australia's primary workplace relations tribunal. Blair argued that his dismissal was not only procedurally flawed but also substantively unfair, given the circumstances surrounding his termination.

The central legal issue before the Commission was whether it had jurisdiction to hear Blair's application for unfair dismissal, given that it was lodged beyond the statutory time limit. The respondent argued that the application was time-barred and therefore outside the jurisdiction of the Commission. This jurisdictional question hinged on the interpretation and application of relevant statutory provisions concerning the timeliness of such applications.

In resolving this issue, the Commission carefully examined the legislative framework governing unfair dismissal claims. It considered the statutory time limits for lodging such applications and the exceptions or extensions available under the law. The Commission found that Blair's application was indeed lodged outside the prescribed time frame and that no valid exception or extension applied. Consequently, the Commission concluded it did not have jurisdiction to hear the application for unfair dismissal. As a result, Blair's application was dismissed for lack of jurisdiction.

Orders