Daniel Racek v DP World Sydney Limited - [2018] FWC 5809

[2018] FWC 5809

Due to a system error, the attached document issued with codes [2018] FWC 5001, PR620296 issued on 29 August 2018 has been re-issued to correct document referencing.

Yota Amanatidis
Relief Associate

Dated 14 September 2018

[2018] FWC 5809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application For Unfair Dismissal Remedy

Daniel Racek

DP World Sydney Limited

(U2018/4742)

Commissioner Johns

sydney, 29 August 2018

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]
This decision is first about whether the application made by Daniel Racek (Applicant) on 7 May 2018 (UFD Application) against his former employer DP World Sydney Limited (Respondent) is out of time and, if so, about whether the Commission should allow the Applicant a further period for lodgement of his application for an unfair dismissal remedy.

The jurisdictional objection

On 5 June 2018 the Respondent lodged its Form F3-Employer Response to Unfair Dismissal Application. At that time it took no objection to the UFD Application being out of time. However, on 2 July 2018 it lodged a Form F4-Objection to Unfair Dismissal Application objecting to the UFD Application on the basis that, it contended, it was out of time (i.e. lodge more than 21 days after the dismissal took effect). The Respondent claimed that the termination took effect on 13 April 2018 and as such the UFD Application was due on 4 May 2018. Noting that the UFD Application was filed on 7 May 2018 the Respondent further contended that the UFD Application was three days late.
On 6 July 2018 the Commission wrote to the Applicant inviting him to submit a written statement about why he thought there were exceptional circumstances warranting the grant of an extension of time.
On 12 July 2018 the Applicant explaining a range of circumstances relating to:
a)   very personal matters leading up to the Respondent’s decision to terminate his employment;
b)   the purported termination on 13 April 2018;
c)   what he thought was an internal review of the decision to terminate his employment; and
d)   the fact that he never received the termination letter which was said to have been sent by courier to him.
He also contended that based on his interpretation of the Acts Interpretation Act 1901 (Cth) his application was not out of time.
On 13 July 2018 a Commission officer explained to the Applicant why his interpretation of the Acts Interpretation Act 1901 (Cth) was incorrect and the basis for the assessment that the UFD Application was 3 days late.
On 20 July 2018 the Applicant wrote another letter of explanation.…

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.

Continue reading Daniel Racek v DP World Sydney Limited

Details

AGLC: Daniel Racek v DP World Sydney Limited [2018] FWC 5809
Case: [2018] FWC 5809
Decision Date: 29 August 2018

CaseChat Overview and Summary

In the case of Daniel Racek v DP World Sydney Limited, the applicant sought relief from his unfair dismissal. The application was lodged beyond the statutory time limit, and the employer argued that the Fair Work Commission (FWC) should not exercise its discretion to extend the time for lodging the application. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue the court had to address was whether the FWC should extend the time limit for lodging an application for unfair dismissal relief. This involved considering whether the applicant had a sufficient excuse for the delay and whether the delay had caused any prejudice to the respondent.

The court examined the circumstances surrounding the delay and found that the applicant had provided a plausible explanation for the late filing of the application. The court also noted that the respondent had not demonstrated any prejudice resulting from the delay. Consequently, the court determined that the FWC had the discretion to extend the time for lodging the application. The application for relief from unfair dismissal was thus deemed to be within the jurisdiction of the FWC.

The final orders of the court were that the application for relief from unfair dismissal should not be dismissed on the basis of the delay in lodging, and the matter should be remitted to the FWC for further consideration.

Orders