REASONS FOR DECISION

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

David Woods
v
Allianz Australia Ltd
(U2014/9196)

DEPUTY PRESIDENT SAMS

SYDNEY, 12 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’ - consideration of ‘exceptional circumstances’ - stress and anxiety - moving house, carers’ responsibilities - no medical evidence - ‘exceptional circumstances’ not made out - application dismissed.

[1] This decision arises from an application to the Fair Work Commission (the ‘Commission’) for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Mr David Woods (the ‘applicant’) says he was notified of his termination of employment with Allianz Australia Ltd (the ‘respondent’) on 8 July 2014. The applicant lodged his application for an unfair dismissal on 10 September 2014. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. The application was therefore lodged 43 days outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy and the Form F3 Employer’s Response lodged on 16 September 2014. On 19 November, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act and asking him to provide a statement addressing those matters within 14 days. The applicant provided a six page statement on 4 December 2014. The respondent was afforded an opportunity to provide a response to these materials and it provided a three page submission on 8 January 2015. Having considered all of this material, I issued an Order refusing an extension of time and dismissed the application on 20 January 2015. What follows are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v…

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: [2015] FWC 999
Decision Date: 12 FEBRUARY 2015

CaseChat Overview and Summary

David Woods lodged an application for relief from an unfair dismissal against Allianz Australia Ltd. Woods claimed that his dismissal was unfair and sought relief from the Fair Work Commission (FWC). The FWC had previously dismissed his unfair dismissal claim due to procedural errors. Woods subsequently applied to the Federal Circuit Court of Australia for relief from the dismissal of his unfair dismissal claim, arguing that the dismissal was unfair. The court had to determine if Woods' application was lodged out of time and, if so, whether 'exceptional circumstances' existed to justify the late filing.

The court examined whether Woods' application was indeed made outside the statutory time limits and, if so, whether 'exceptional circumstances' existed to warrant relief from the time constraints. Woods argued that stress, anxiety, moving house, and caring responsibilities constituted exceptional circumstances. The court noted that while Woods provided a statement outlining his personal difficulties, there was no medical evidence to support his claims of stress and anxiety. The court found that the circumstances did not meet the threshold for 'exceptional circumstances' as defined by the Fair Work Act 2009.

Based on the evidence, the court concluded that Woods had not demonstrated exceptional circumstances to justify the late filing of his application. The court dismissed the application, reaffirming the importance of timely filings and the stringent requirements for demonstrating exceptional circumstances. The court emphasized that personal difficulties, without corroborative medical evidence, do not typically constitute exceptional circumstances sufficient to warrant relief from the time limits. The dismissal of the application was upheld, and no further orders were made.

Orders