DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Duc Trung Hieu Dinh
v
Integrated Packaging (Aust) Pty Ltd
(U2020/12898)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 OCTOBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – application lodged out of time – no exceptional circumstance.

[1] Mr Dinh applied for an unfair dismissal remedy having been dismissed from Integrated Packaging (Aust) Pty Ltd (the Respondent) on 30 July 2020. The Respondent objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Mr Dinh concedes that his application was filed 36 days after the statutory requirement. However, he attributes the delay on his having placed reliance on the representation of the Australian Manufacturing Workers’ Union (Union) that it would assist him. Mr Dinh notes that English is his second language, having immigrated from Vietnam in 1990. A translator was utilised for the hearing.

[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 Dinh’s application was made out of time. However, for Mr Dinh’s application to now proceed, it is necessary for him to obtain an extension of time in which 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. 1

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

Background

The incident leading to dismissal

[6] On 10 July 2020, Mr Dinh started his shift at the Respondent business at 4.00pm. Mr Dinh was a leading hand. In that position he performed several duties including those of (a) senior machine operator; (b) setting up of machinery before the start of a shift; (c) organising of teams working on the machinery; and (d) quality checking the work of the machine operators and senior machine operators. 2

[7] Mr Dinh explained that a machine operator is responsible for wrapping products with bubble film using a machine as part of a two-person team and placing the wrapped product onto pallets. 3 A senior…

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: [2020] FWC 5760
Decision Date: 30 OCTOBER 2020

CaseChat Overview and Summary

The applicant, Duc Trung Hieu Dinh, sought a remedy for an alleged unfair dismissal from Integrated Packaging (Aust) Pty Ltd, his former employer. The dispute arose from the termination of his employment and his subsequent application for relief to the Fair Work Commission (FWC) under the Fair Work Act 2009. The matter was heard in the Federal Court of Australia, where the employer challenged the jurisdiction of the FWC to hear the unfair dismissal remedy application on the basis that it was lodged beyond the statutorily prescribed period. The central legal issue before the court was whether the FWC had the jurisdiction to entertain the unfair dismissal remedy application, given that it was lodged after the expiration of the 21-day period stipulated by the Fair Work Act. Additionally, the court had to determine if any exceptional circumstances existed that would warrant an extension of the time limit for lodging the application.

The court considered the statutory framework governing the timeliness of unfair dismissal remedy applications and found that the application was indeed lodged beyond the prescribed period. The applicant did not present any compelling evidence of exceptional circumstances that would justify an extension of time. The court emphasised the importance of strict adherence to statutory deadlines in employment-related matters to ensure fairness and predictability. Consequently, the court held that the FWC did not have jurisdiction to hear the unfair dismissal remedy application due to the applicant's failure to lodge the application within the mandated timeframe. The court dismissed the application for unfair dismissal remedy, reinforcing the necessity for strict compliance with statutory timelines in such proceedings.

Orders