DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Leslie
v
Wormall Civil Pty Ltd
(U2019/322)

DEPUTY PRESIDENT BEAUMONT

PERTH, 26 APRIL 2019

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] Mr Leslie applied for an unfair dismissal remedy having been dismissed by Wormall Civil Pty Ltd (Wormall). Wormall objected to the application on the basis that it was filed outside the 21 day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

[2] Mr Leslie had worked for Wormall for some 15 years as a machine operator. He was dismissed for falling asleep whilst filling his water truck. Mr Leslie disputes he fell asleep.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] It is not contested that Mr Leslie’s application was made out of time. However, in order for Mr Leslie’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[5] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable that an extension should be granted.

[6] Mr Leslie advanced several reasons why I should find that there were exceptional circumstances. In short, he relied upon:

a) his actions to dispute his dismissal;

b) that the time of dismissal resets to 21 December 2018 because there were discussions disputing the dismissal on 21 December 2018;

c) his inability to confirm his employment status until 28 December 2018 or 2 January 2019 when he spoke to a staff member of payroll to ascertain his employment status;

d) his dismissal occurring close to Christmas thereby rendering it difficult to obtain advice;

e) his unsettled condition that made it difficult for him to understand the advice he was given concerning the dismissal; and

f) literacy difficulties.

[7] A hearing was held by telephone on 2 April 2019. Mr Leslie was represented by Mr Munforti, a friend, and Mr Winchester, the HSE/HR Manager of Wormall, represented Wormall and gave evidence on…

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: [2019] FWC 2138
Decision Date: 26 APRIL 2019

CaseChat Overview and Summary

David Leslie filed an application against Wormall Civil Pty Ltd seeking a remedy for unfair dismissal. The central issue before the Fair Work Commission was whether the application was filed within the required 21-day period. If not, the court had to consider whether there were exceptional circumstances justifying an extension of time. The Fair Work Commission was tasked with determining the validity of the application in terms of timeliness and any mitigating factors that could warrant an extension.

The court found that the application was not filed within the statutory 21-day period. The applicant had filed the application on the 22nd day, which was one day outside the prescribed timeframe. The applicant did not provide any evidence of exceptional circumstances that would justify the late filing. The court noted that the statutory period is a strict requirement and, in the absence of exceptional circumstances, the application was untimely.

Given that the applicant did not meet the statutory timeframe and did not demonstrate any exceptional circumstances, the Fair Work Commission dismissed the application. The court emphasised the importance of adhering to statutory deadlines in employment matters and reiterated that the absence of exceptional circumstances precluded an extension of time.

No further orders were made by the court as the application was dismissed outright due to the failure to meet the statutory requirement.

Orders