Daniel Prowse v Rivalea (Australia) Pty Ltd - [2011] FWA 8497

[2011] FWA 8497

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Daniel Prowse
v
Rivalea (Australia) Pty Ltd
(U2011/11629)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 DECEMBER 2011

Unfair dismissal - application filed one day ‘out of time’ - exceptional circumstances - no fault of employee - representative error - interests of justice - merits of case - no prejudice to employer - extension of time granted.

[1] This decision will determine a jurisdictional objection lodged by Rivalea (Aust) Pty Ltd (‘the respondent’) to an unfair dismissal application, filed by the Australasian Meat Industry Employees’ Union (‘the Union’) on behalf of its member, Mr Craig Prowse (‘the applicant’), pursuant to s 394 of the Fair Work Act 2009 (Cth) (‘the Act’). The objection is to the application being accepted by Fair Work Australia (‘FWA’) outside the statutory 14 day time limit set by s 394(2) of the Act. It is acknowledged by the parties that the application, filed on 9 September 2011, was filed one day late.

[2] The jurisdictional objection was listed for hearing in Wodonga on 29 November 2011 and, despite my encouragement, at the time, for the matter to be conciliated, the respondent maintained that it wished to have its jurisdictional objection dealt with as a preliminary matter. The respondent strongly asserted that the dismissal of the applicant for misconduct was justified, the reasons for his dismissal had been properly investigated and all relevant matters appropriately taken into account. The reasons for the applicant’s dismissal are not strictly relevant to the determination by FWA as to whether the reason/s for the delay in filing the application constituted ‘exceptional circumstances’ as contemplated by s 394(3) of the Act. Nevertheless, I note that much of the material filed by the Union in response to the jurisdictional objection, being statements from the applicant and the Union delegate, was directed to the merits of the applicant’s claim of unfair dismissal, in particular in respect to procedural unfairness contentions, the applicant’s denial of the allegations, the seriousness of the applicant’s conduct and his contrition (if the conduct had occurred unintentionally).

SUBMISSIONS

[3] Ms Deidre Williams,for the Union, conceded that the reason for the delay in filing the applicant’s application rested entirely with her. She submitted that during the month of September 2011, she had been treated for a long term medical condition; a condition which she did not wish to be disclosed to the respondent. In this respect, Ms Williams had lodged a medical certificate with the Tribunal and which I marked ‘confidential’ during the proceedings. In addition, I note that in an email to FWA dated 9 September 2011, Ms Williams said:

“Unfortunately I have been ill and unable to conclude on this by close business Thursday and I hope this will not prejudice Daniel having an opportunity to have this matter heard”.

[4] Ms Williams also submitted that as her Union was a small organisation, when an official is out of action it…

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: [2011] FWA 8497
Decision Date: 19 DECEMBER 2011

CaseChat Overview and Summary

The matter between Daniel Prowse and Rivalea (Australia) Pty Ltd was brought before the court regarding an alleged unfair dismissal. Prowse sought to file his application one day beyond the statutory deadline, citing exceptional circumstances for the late filing. The company opposed the application on the basis of the lateness and the potential prejudice to their case. The court was tasked with determining whether the late filing could be justified under the exceptional circumstances exception and whether the employer would suffer any prejudice as a result.

The central legal issue before the court was whether the late filing of Prowse's application, due to an error by his representative, constituted exceptional circumstances warranting an extension of time. The court considered whether the delay was due to no fault of the employee, the potential prejudice to the employer, and whether the interests of justice demanded that the application be heard on its merits. The employer argued that the delay prejudiced their ability to respond adequately, while Prowse maintained that the error was not his fault and that there was no real prejudice to the employer.

In delivering the judgment, the court recognised that the delay was not due to any fault on Prowse's part, and the error was attributable solely to his representative. The court also noted that the employer had not demonstrated any actual prejudice as a result of the delay, and that allowing the application to proceed would serve the interests of justice. The court was satisfied that the merits of Prowse's case warranted a hearing, and granted the extension of time for the application. The court found that the delay did not prejudice the employer and that the interests of justice were best served by allowing the application to proceed.

The court granted Prowse's application to extend the time for filing his unfair dismissal claim. The late filing was deemed justified under the exceptional circumstances exception, and the employer's opposition was dismissed. The court ordered that the application be heard on its merits, and the case proceeded accordingly.

Orders