Enrique Aquino v Hypostyle Pty Ltd - [2024] FWCFB 448

[2024] FWCFB 448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Enrique Aquino
v

Hypostyle Pty Ltd

(C2024/7574)

DEPUTY PRESIDENT MILLHOUSE
DEPUTY PRESIDENT EASTON
COMMISSIONER SLOAN

MELBOURNE, 6 DECEMBER 2024

Appeal against decision [2024] FWC 2790 and order PR780075 of Deputy President Boyce at Sydney on 9 October 2024 in matter number U2024/7952

Enrique Aquino has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (“Act”) against a decision[1] and order[2] of Deputy President Boyce issued on 9 October 2024. In the decision, the Deputy President declined to grant an extension of time for the filing of Mr Aquino’s application for an unfair dismissal remedy against Hypostyle Australia Pty Ltd (“Hypostyle”). Mr Aquino requires permission to appeal.

The matter was listed before the Full Bench for permission to appeal only. The parties consented to the application being determined without holding a hearing under s 607(1)(b) of the Act. We were satisfied, having regard to s 607(1)(a), that the question of permission to appeal could be adequately determined without the need for oral submissions. For the reasons that follow, permission to appeal is refused.

Decision under appeal

At the outset of his decision, the Deputy President observed that s 394(2)[3] of the Act provides that an unfair dismissal application must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow. Relevant to that requirement, the Deputy President noted three things: first, that Mr Aquino’s dismissal took effect on 31 May 2024; second, to have made the application within the 21-day time limit Mr Aquino needed to have filed his unfair dismissal application by 21 June 2024; and third, Mr Aquino filed the application on 9 July 2024, 19 days outside of that time limit.

The Deputy President proceeded to consider whether to allow a further period for Mr Aquino’s application to be made, under s 394(3). To do so would require him to have found that there were exceptional circumstances, taking into account the criteria in that subsection.

The Deputy President found that two of those criteria weighed against there being exceptional circumstances in this case. These were Mr Aquino’s reasons for the delay (s 394(3)(a)) and the merits of the application (s 394(3)(e)).

Mr Aquino’s contentions before the Deputy President as to the reason for the delay can be summarised in short order. He submitted to the Deputy President that at the time of his dismissal, he had been told by Hypostyle that its business was closing down at the end of May 2024 and that he and all of the other employees in the business were to be made redundant. He was subsequently dismissed by Hypostyle, purportedly on that basis. However, in or about the first week of July 2024 he discovered that the Hypostyle business was still operational and trading. This led him to form the view that his dismissal was not a genuine redundancy, prompting him to file the unfair…

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: [2024] FWCFB 448
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

Enrique Aquino appealed against a decision and order of Deputy President Boyce, who had declined to grant an extension of time for Mr Aquino’s application for unfair dismissal against Hypostyle Australia Pty Ltd. The Full Bench was tasked with determining whether permission to appeal should be granted. The primary legal issue was whether the Deputy President's decision not to extend the time for filing the unfair dismissal application involved a significant error of fact or manifest injustice, warranting permission to appeal under the stringent criteria set out in section 400 of the Fair Work Act 2009.

The Full Bench examined Mr Aquino’s grounds for appeal, which included assertions about the late discovery of certain information and concerns about his wellbeing and health. However, the Full Bench found that these grounds did not demonstrate any arguable case of appealable error by the Deputy President. The Full Bench concluded that the Deputy President had exercised his discretion correctly by considering all relevant criteria under section 394(3) of the Act and that the findings of fact were reasonably open to him based on the evidence presented. The Full Bench further noted that the appeal did not raise any genuine issues of law, principle, or wider application that would attract the public interest.

In conclusion, the Full Bench found that Mr Aquino’s grounds of appeal did not meet the stringent test for permission to appeal under section 400 of the Act. The Full Bench therefore refused permission to appeal.

Orders