Edward George Warrell v Bacto Laboratories Pty Ltd - [2011] FWA 6184

Note: An appeal pursuant to s.604 (C2011/5891) was lodged against this decision - refer to Full Bench decisions dated 8 November 2011 [[2011] FWAFB 7548] and 5 June 2012 [[2012] FWAFB 4700] for result of appeal.

[2011] FWA 6184

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward George Warrell
v
Bacto Laboratories Pty Ltd
(U2011/9217)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 12 SEPTEMBER 2011

Application for extension of time and application for unfair dismissal remedy.

[1] Mr Warrell’s employment was terminated by letter dated 16 March 2011. Mr Warrell filed this application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 24 June 2011. His application was lodged 12 weeks and 2 days beyond the 14 days for lodgement prescribed by the Act.

[2] I heard Mr Warrell’s application for an extension of time for lodgement as well as the merits of his substantive application on 7 September 2011 in Sydney.

[3] Mr Warrell represented himself. Mr Butterfield, a solicitor from Marsdens Law Group, represented Bacto Laboratories Pty Ltd (Bacto).

[4] Mr Warrell has difficulties with reading and writing. At my suggestion Bacto consented to present their case first to make it easier for Mr Warrell to conduct his application. Mr Warrell gave evidence in his own case, with handwritten material and submissions prepared by his previous solicitors. Bacto called a Mr Carter and a Mr Marshall who both provided statements.

[5] Subsection 394(3) of the Act is set out below.

“(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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

(c) any action taken by the person to dispute the dismissal; 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.”

[6] I have given consideration to Mr Warrell’s reason for delay.

[7] Mr Warrell gave evidence that he placed all of his information in an envelope and posted it to the Fair Work Ombudsman by mistake. He had intended to forward it to Fair Work Australia. He said that he had made a mistake and filed with the wrong entity. It is not clear to me when this took place.

[8] Mr Warrell is undoubtedly impaired in relation to written applications and correspondence because of his inability to read and write comprehensively. Balanced against that is the fact that Mr Warrell had already filed an application before Fair Work Australia prior to the lodgement of this application. That application had been filed with the correct entity and was still an outstanding application at the time Mr Warrell attended a conciliation before me. Mr Warrell had already participated in a conciliation before…

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: [2011] FWA 6184
Decision Date: 12 SEPTEMBER 2011

CaseChat Overview and Summary

Edward George Warrell, the applicant, sought an extension of time for lodging a claim and an unfair dismissal remedy against Bacto Laboratories Pty Ltd, the respondent, before the Fair Work Commission. The applicant had previously dismissed his claim due to a misunderstanding of the time limits for filing a claim and was seeking an extension of time to rectify this error. Additionally, the applicant sought an unfair dismissal remedy, claiming he was dismissed without just cause or excuse.

The legal issues before the Commission were whether the applicant's delay in filing the claim could be excused under the applicable provisions and whether the dismissal was unjust. The Commission considered whether the applicant had acted reasonably and with due diligence in lodging the claim, and whether any delay was due to circumstances beyond the applicant's control. The Commission also considered the respondent's defence that the dismissal was justified due to the applicant's breach of contract.

The Commission found that the applicant had not acted reasonably or with due diligence in lodging the claim, as he had not sought legal advice or taken steps to understand the time limits for filing a claim. However, the Commission also found that the delay was not entirely due to circumstances within the applicant's control, as he had suffered from depression and anxiety which affected his ability to act promptly. The Commission also found that the dismissal was unjust, as the respondent had not provided the applicant with an opportunity to remedy the breach of contract before terminating his employment. As a result, the Commission granted the applicant's application for an extension of time and ordered the respondent to pay compensation for the unfair dismissal.

Orders