Dut v Caterfare Pty Ltd - [2014] FWC 2859

[2014] FWC 2859

FAIR WORK COMMISSION

DECISION

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

Dut
v
Caterfare Pty Ltd
(U2014/4724)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 1 MAY 2014

Application for unfair dismissal remedy - extension of time and jurisdiction - application for extension of time dismissed.

[1] Mr N Dut made an application under s.395 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment effective on 17 January 2014. Caterfare Pty Ltd (Caterfare) is cited as the respondent employer.

[2] Caterfare has raised two preliminary objections to the application:

● First, Caterfare contended that it was not the employer of Mr Dut and did not terminate his employment – there was no dismissal within the meaning of s.386 of the Act by Caterfare. This objection was brought on the basis that Mr Dut was an employee of Flexi Personnel Pty Ltd (Flexi), placed at Caterfare subject to a commercial labour-hire arrangement between Caterfare and Flexi.

● Secondly, Caterfare argued that the application was made beyond the 21 day period prescribed in s.394(2)(a) of the Act and there are no exceptional circumstances for allowing a further period for the application to be made under s.394(2)(b) of the Act.

[3] The second objection by Caterfare raises an initial matter under s.396 of the Act which must be decided before considering the merits of the application: the question of whether Mr Dut’s application was made within the period prescribed in s.394(2) (s.396(a)). The first objection goes to whether there was an unfair dismissal (s.385(a)) in that it was put that Mr Dut was not dismissed by Caterfare.

[4] Where a s.394 application is made “outside of the time period prescribed in s.394(2)(a) of the Act, no application had been made until allowed by the Commission under s.394(2)(b)”. 1 Accordingly, it is necessary to first consider and determine the second objection, based on the proposition that the application was made beyond the 21 day period prescribed in s.394(2)(a) of the Act and there are no exceptional circumstances for allowing a further period for the application to be made under s.394(2)(b) of the Act.

The relevant statutory provision

[5] When considering whether to exercise the discretion under s.394(2)(b) of the Act to extend the time for filing the application, the Fair Work Commission (the Commission) is required to take into account the factors contained in s.394 of the Act. That section is in the following terms:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

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

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

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

(a) the…

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: [2014] FWC 2859
Decision Date: 1 MAY 2014

CaseChat Overview and Summary

In the matter of Dut v Caterfare Pty Ltd, the applicant sought relief from the Fair Work Commission (FWC) for an unfair dismissal claim, necessitating an extension of time beyond the statutory limit. The applicant argued that the respondent had engaged in unfair dismissal and requested an extension of the 21-day statutory period within which to lodge the claim. The respondent opposed the extension, contending that the applicant had not shown sufficient grounds for the delay.

The primary legal issue before the FWC was whether the applicant had demonstrated sufficient grounds to warrant an extension of the statutory time limit for lodging the unfair dismissal claim. The court needed to assess the applicant's reasons for the delay and determine if they were reasonable and just under the circumstances. The respondent argued that the applicant had failed to provide satisfactory justification for the delay, and that granting an extension would undermine the statutory time limit's purpose.

The FWC considered the applicant's reasons for the delay and found that they did not provide sufficient grounds for an extension of time. The applicant had not demonstrated that the delay was reasonable or just, nor had they shown that the delay would not significantly prejudice the respondent. The FWC concluded that the statutory time limit was a crucial aspect of the unfair dismissal process, designed to ensure timely resolution of disputes and prevent potential prejudice to the respondent. As such, the application for an extension of time was dismissed.

Consequently, the FWC did not grant the applicant an extension of time to lodge their unfair dismissal claim, and the matter was dismissed for lack of jurisdiction. The court emphasised the importance of adhering to statutory time limits in employment disputes, and that extensions should only be granted in exceptional circumstances where the applicant can demonstrate compelling reasons for the delay.

Orders