REASONS FOR DECISION

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

Ms Crystal Giles
v
Coal Train Australia Pty Ltd
(U2020/925)

DEPUTY PRESIDENT ASBURY

BRISBANE, 1 MAY 2020

Application for an unfair dismissal remedy – Application filed outside time required in s. 394(a) – Applicant failed to comply with Directions – Applicant asserted technical difficulties with filing her application as reason for delay – Insufficient evidence of technical difficulties – No exceptional circumstances established – Extension of time to make application refused – Application dismissed.

OVERVIEW

[1] Ms Crystal Giles (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Coal Train Australia Pty LTd (the Respondent). The Form F2 Application for an unfair dismissal remedy filed by the Applicant and the Form F3 Employer Response to an unfair dismissal application filed by the Respondent, state that the Applicant was notified of her dismissal on 3 January 2020 and it took effect on that date.

[2] Section s.394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as allowed by the Fair Work Commission (the Commission) under s. 394(3). To meet the time requirement in s. 394(2) of the Act the Applicant was required to make her application by 24 January 2020. The Applicant did not lodge her application until 28 January 2020 – four days outside the prescribed period.

[3] The Respondent objects to the application on the basis that it was made outside the time required in s. 394(2) and further asserts that the dismissal was a case of genuine redundancy. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made. In addition to its jurisdictional objections, when the Applicant did not comply with a series of Directions issued by the Commission the Respondent filed an application under s. 399A seeking that her application be dismissed.

[4] At a hearing on 22 April 2020 I informed the parties that I had decided that there were not exceptional circumstances and that I would not to exercise the discretion in s. 394(3) to grant a further period for the Applicant to file her unfair dismissal application. I also informed the parties that I would issue reasons for that decision in due course. These are my reasons.

BACKGROUND

[5] As noted above, the Commission’s records indicate that the Applicant lodged her unfair dismissal application on 28 January 2020. The application was incomplete and following correspondence sent from the Commission the Applicant filed a completed application. The matter was listed for conciliation, before a Fair Work Commission Conciliator, on 4 March 2020, and was not resolved.

[6] On 10 March 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application…

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: [2020] FWC 2274
Decision Date: 1 MAY 2020

CaseChat Overview and Summary

In the matter of Giles v Coal Train Australia Pty Ltd, the Fair Work Commission was tasked with considering an application for unfair dismissal remedy filed outside the statutory time limit. The applicant, Giles, sought redress against Coal Train Australia Pty Ltd for an alleged unfair dismissal. The dispute centred on whether the application, filed beyond the deadline specified in section 394(a) of the Fair Work Act 2009, should be accepted despite the lateness, and whether the applicant could provide a sufficient justification for the delay.

The primary legal issue before the Commission was whether the late filing of the application could be excused under the Act. Specifically, the Commission had to determine if the applicant had provided sufficient evidence of technical difficulties that impeded timely filing, and whether these circumstances were exceptional enough to warrant an extension of time. Additionally, the Commission needed to assess whether the applicant's failure to comply with the Commission's directions constituted a valid reason for the delay.

The Commission found that the applicant had not provided adequate evidence to substantiate the claim of technical difficulties that allegedly caused the delay in filing the application. The applicant's assertions were not supported by concrete evidence, and the Commission determined that the reasons provided did not meet the threshold of exceptional circumstances. Furthermore, the applicant's failure to adhere to the directions issued by the Commission was noted as a significant factor in the decision. Given these findings, the Commission refused the application for an extension of time and dismissed the unfair dismissal remedy application.

Orders