Edison Musoni v Canberra Construction Recyclers Pty Ltd - [2024] FWCFB 230

[2024] FWCFB 230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Edison Musoni
v

Canberra Construction Recyclers Pty Ltd

(C2024/935)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT EASTON

MELBOURNE, 21 MAY 2024

Appeal against decision [2024 FWC 291] of Deputy President Roberts at Sydney on 5 February 2024 in matter number U2023/11939

Edison Musoni seeks permission to appeal and to appeal the decision (Decision) of Deputy President Roberts made on 5 February 2024 rejecting his application to be allowed a further period within which to make an application for an unfair dismissal remedy against Canberra Construction Recyclers Pty Ltd (Respondent) under s 394 of the Fair Work Act 2009 (Cth) (Act) and dismissing the application.[1]

We have decided to refuse permission to appeal. Our reasons follow.

Background

Mr Musoni commenced employment with the Respondent on 7 December 2016.[2] Mr Musoni worked as a labourer for the Respondent in the recycling construction materials industry.[3] Although there was some dispute about the date the employment ended,[4] the Deputy President found that the dismissal took effect on 9 October 2023.[5] Mr Musoni applied under s 394 of the Act for an unfair dismissal remedy on 30 November 2023. He did so 31 days outside of the time prescribed by s 394(2)(a).[6]

On 5 February 2024, Deputy President Roberts conducted a hearing to deal with the question of whether Mr Musoni should be permitted a further period within which to lodge his unfair dismissal application.

Consideration

The decision below

Section 394(2) of the Act requires an application for an unfair dismissal remedy to be made within 21 days after the dismissal took effect, or within such further period as the Commission may allow.

As already noted, Deputy President found Mr Musoni’s dismissal took effect on 9 October 2023.[7] To fall within the 21-day timeframe prescribed by s 394(2) of the Act, the Deputy President correctly concluded that Mr Musoni’s unfair dismissal remedy application should have been made by 30 October 2023,[8] and that as it was made on 30 November 2023, the application was made 31 days outside the time prescribed by the Act.[9]

After setting out that an extension of time to make an unfair dismissal remedy application may be granted if satisfied there are ‘exceptional circumstances’ and reproducing the mandatory considerations in making that assessment,[10] the Deputy President proceeded to consider those matters.

First, the Deputy President considered the various reasons for the delay advanced by Mr Musoni. In summary, Mr Musoni’s reasons for delay were that he:

Ø remained affected by the injury to his finger;
Ø was not thinking clearly due to the shock of the unexpected dismissal and was emotionally overwhelmed;
Ø had limited spoken and written English communication skills, which made seeking assistance and advice more difficult;
Ø sought documentation from the Respondent, which was not provided;
Ø was not able to obtain assistance from a lawyer to whom he was referred because the lawyer was away overseas; and
Ø was not…

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.

Continue reading Edison Musoni v Canberra Construction Recyclers Pty Ltd

Details

AGLC: Edison Musoni v Canberra Construction Recyclers Pty Ltd [2024] FWCFB 230
Case: [2024] FWCFB 230
Decision Date: 21 MAY 2024

CaseChat Overview and Summary

The appeal in Edison Musoni v Canberra Construction Recyclers Pty Ltd concerns a refusal by Deputy President Roberts to allow Mr Musoni an extension of time within which to lodge an application for unfair dismissal remedy. Mr Musoni was dismissed on 9 October 2023, and he applied for unfair dismissal remedy on 30 November 2023, 31 days outside the 21-day period prescribed by s 394(2)(a) of the Fair Work Act 2009. Section 394(2)(b) of the Act allows the Fair Work Commission to grant an extension of time if there are exceptional circumstances. Mr Musoni contended there were exceptional circumstances justifying an extension of time, including that he did not know of the 21-day time limit, he was emotionally affected by the dismissal, he had limited English skills, he did not receive requested documentation from the Respondent, and he was unable to obtain legal advice because his intended lawyer was overseas. The Deputy President found that there were no exceptional circumstances warranting an extension of time and dismissed Mr Musoni's application. Mr Musoni now appeals against this decision.

The appeal before the Full Bench centred on whether there was an arguable case of appealable error warranting a grant of permission to appeal. The Full Bench considered Mr Musoni's 17 grounds of appeal and found that none disclosed appealable error. The Full Bench held that the Deputy President properly considered Mr Musoni's reasons for the delay, found them unsatisfactory, and concluded there were no exceptional circumstances warranting an extension of time. The Full Bench found the Deputy President's reasons for the decision were based on the evidence and the law, and there was no error.

Accordingly, the Full Bench refused permission to appeal. The Full Bench found that there was no sufficiently arguable case of appealable error, no diversity of decisions at first instance requiring guidance from an appellate Full Bench, no issues of general importance or application, and no injustice, counterintuitive result, or disharmonious legal principles in the Deputy President's decision. The Full Bench held that it was not in the public interest to grant permission to appeal.

Orders