Danny Sit v Sigma Company Limited - [2023] FWC 1281

[2023] FWC 1281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danny Sit
v

Sigma Company Limited

(U2023/3506)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 31 MAY 2023

Application for an unfair dismissal remedy – extension of time – exceptional circumstances not found – application dismissed.

On 25 April 2023, Mr Sit made an application to the Commission for an unfair dismissal remedy. His employment was terminated by Sigma Company Limited effective 3 April 2023.

Section 394(2) of the Fair Work Act 2009 (Cth) (Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).

The 21-day time period expired at midnight on 24 April 2023, and therefore, the application was made one day late. In order for the application to proceed, Mr Sit requires the Commission to grant a further period of time within which to bring his application.

On 1 May 2023 Mr Sit was directed to file material in support of an extension of time being granted by 8 May 2023. When he failed to comply with this direction and attempts to contact him were unsuccessful, the matter was listed to deal with his non-compliance on 24 May 2023. On the morning of this hearing, his representative, Ms Tse, advised that Mr Sit was overseas and unable to attend. Correspondence was then sent to Mr Sit advising that his application was at risk of being dismissed under section 587 of the Act. On 26 May 2023, Ms Tse sent an email apologising on behalf of Mr Sit for not responding earlier and advised that he had travelled to Hong Kong to assist his ill mother and did not realise that he had missed telephone calls from my chambers as he did not have international roaming.

The parties were then advised that the hearing would proceed on 30 May 2023, to deal with the question of whether to grant additional time to allow Mr Sit to pursue his application.

At the hearing on 30 May 2023, Ms Tse appeared for Mr Sit. Ms Tse confirmed that she represented Mr Sit as a paid agent and advised that he was unable to attend the hearing as he was attending to his sick mother and was having a ‘medical emergency’ which meant he could not attend.

I indicated that if Mr Sit provided a statutory declaration explaining why he was unable to attend the hearing today, I would adjourn the hearing until 4:00 pm tomorrow. Alternatively, I could determine the application on the basis of the limited material before the Commission. I advised that the information before the Commission does not provide a basis upon which exceptional circumstances would be found, warranting an additional period of time being granted. Ms Tse advised that the later was the course the Commission should take.

Accordingly, I have determined the issue on the basis of the material before the Commission. I am…

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: [2023] FWC 1281
Decision Date: 31 MAY 2023

CaseChat Overview and Summary

In the case of Danny Sit versus Sigma Company Limited, the applicant, Mr Sit, sought an unfair dismissal remedy against his employer, Sigma Company Limited, following the termination of his employment on 3 April 2023. The application was lodged with the Fair Work Commission on 25 April 2023, one day beyond the statutory 21-day limit prescribed by section 394(2) of the Fair Work Act 2009 (Cth). The primary legal issue before the court was whether the Commission should grant an extension of time for Mr Sit to lodge his unfair dismissal application, given the missed deadline, and if so, whether exceptional circumstances existed to justify such an extension under section 394(3) of the Act.

The court examined the reasons provided by Mr Sit for the delay in filing his application, weighing them against the statutory requirement for exceptional circumstances. Mr Sit's representative provided an email stating that Mr Sit had been preoccupied with caring for his ill mother and did not realise he had missed communications from the Commission due to lack of international roaming. However, the court found that this explanation lacked sufficient detail and credibility to constitute exceptional circumstances. The court considered various factors, including the reason for the delay, whether Mr Sit was aware of the dismissal before it took effect, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other similarly situated persons. The court concluded that none of these factors supported the presence of exceptional circumstances necessary to warrant an extension of time.

Consequently, the Fair Work Commission decided that Mr Sit's application for an unfair dismissal remedy was time-barred and could not proceed. The Commission found no exceptional circumstances to justify an extension of time, and thus, dismissed the application. An order to this effect was issued separately.

Orders