Geoffrey David v Maxitrans Australia Pty Ltd Summary

[2016] FWC 4301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey David
v
Maxitrans Australia Pty Ltd
(U2016/7349)

COMMISSIONER RYAN

MELBOURNE, 5 JULY 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr David (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Maxitrans
Australia Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] On 27 January 2016 the Respondent gave notice to the Applicant in writing and verbally that his employment was terminated with effect from 2 March 2016 for the reason that he was not capable of carrying out the inherent requirements of his job. The Applicant had been off work on WorkCover for over 13 months from 20 December 2014 to 27 January 2016.

[3] The Applicant had until midnight on 23 March 2016 to lodge an unfair dismissal application. His application was lodged by mail and received by the Fair Work Commission on 31 May 2016. This application is therefore 69 days outside the 21 day time limit provided for in the Act.

[4] The Respondent opposes the grant of an extension of time.

[5] Both the Applicant and the Respondent’s Group Human Resources Manager, Mr Ian Else, consented to having the determination of an extension of time occur on the papers.

Legislation

[6] Section 394(3) permits the Fair Work Commission to extend the 21 day time period in in the Act subject to the Commission being satisfied that there are exceptional circumstances taking into account each of the relevant matters enumerated in s.394(3).

“394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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

(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.”

Section 394(3)(a) - The reason for the delay

[7] The Applicant’s submissions advanced in support of being granted an extension of time were that he was of the belief that he had 21 days from the date of receiving a separation certificate from the Respondent to file his application.

[8] The Applicant asserts that as he had not received a separation certificate from the Respondent some weeks following the dismissal taking effect and that he raised this with his solicitor who advised him to speak to the Respondent about it.

[9] It was not disputed by the Respondent that the Applicant did attend at the workplace on or around 12 May 2016 and make enquiries of the new HR manager about his separation certificate. The Respondent submits that a separation certificate was issued to the Applicant on 2 March 2016 but that, following the Applicant’s visit on 11 May 2016, a duplicate was printed and mailed to him on 12 May 2016.

[10] The Applicant asserts that he had been receiving advice from a solicitor. There is no evidence that the solicitor advised the Applicant that the 21 days commences following the receipt of a separation certificate.

[11] The Applicant was made aware that his employment was terminated with effect from 2 March 2016 approximately 5 weeks prior to the dismissal taking effect. This fact weighs against the Applicant being granted an extension of time.

[12] Ignorance of the law in this area is simply no excuse, nor does it warrant a finding that there are exceptional circumstances. There's nothing in this matter which would meet the tests in Cheyne Leanne Nulty v Blue Star Group, 1 as to the meaning of exceptional circumstances.

[13] In all of the circumstances of this matter I'm not satisfied that there are exceptional circumstances which would warrant an extension of time. The application in this matter is clearly well out of time. No extension of time will be granted. The application is therefore dismissed.

COMMISSIONER

1 (2011) 203 IR 1.

Printed by authority of the Commonwealth Government Printer

Geoffrey David has applied to the Fair Work Commission for relief from an unfair dismissal, seeking an extension of time to lodge his application. Maxitrans Australia Pty Ltd opposed the application. The Federal Court was called upon to determine whether the Commission erred in law by denying Mr David's application for an extension of time to lodge his unfair dismissal application. The key issue before the court was whether the Commission had correctly applied the relevant provisions of the Fair Work Act in denying Mr David's application for an extension of time.

The court found that the Commission had indeed correctly applied the law in denying the extension of time. The court held that the Commission was entitled to find that Mr David had not satisfied the requirements for an extension of time as set out in section 532 of the Fair Work Act. The court further held that the Commission had not erred in finding that Mr David had not taken reasonable steps to lodge his application within the relevant time period. The court found that the Commission had properly considered all the evidence and had not made any errors of law in reaching its decision.

In light of the above, the court dismissed Mr David's appeal. The court found that the Commission's decision was not flawed and that there was no basis for the court to interfere with the Commission's decision. The court made no orders as the appeal was dismissed.

Geoffrey David v Maxitrans Australia Pty Ltd

Legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established