DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Bourne
v
Faqeeri Pty Ltd
(U2020/16599)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 24 FEBRUARY 2021

Unfair dismissal application filed out of time – circumstances exceptional – extension of the time for filing allowed.

[1] This decision concerns an application by Mr Graeme Bourne (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant contends that his casual employment with Faqeeri Pty Limited (Respondent) was terminated with effect on 9 December 2020. The Respondent contends that the Applicant was not dismissed. I am not determining whether or not the Applicant was dismissed in this decision. I am determining whether the Applicant should be granted an extension of time to file his Application. For the purpose of determining that question, I will take the Applicant’s case on dismissal at its highest and proceed on the assumption that his dismissal took effect on 9 December 2020.

[3] The Applicant’s unfair dismissal application was lodged in the Fair Work Commission (Commission) on 31 December 2020.

[4] Section 394(2) of the Act states 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 the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 30 December 2020. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(d) prejudice to the employer (including prejudice caused by the delay);

(e)…

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: [2021] FWC 1021
Decision Date: 24 FEBRUARY 2021

CaseChat Overview and Summary

Graeme Bourne brought an application for unfair dismissal against Faqeeri Pty Ltd in the Fair Work Commission. The primary dispute involved the termination of Mr Bourne's employment and the subsequent claim for unfair dismissal. The case was heard in the Fair Work Commission, an Australian statutory tribunal with jurisdiction over employment disputes.

The central legal issue before the court was whether the Commission should permit Mr Bourne to file his unfair dismissal application outside the statutory time limit. The Fair Work Act 2009 mandates that such applications be lodged within 21 days of the termination of employment. However, Mr Bourne had filed his application beyond this deadline, citing exceptional circumstances that prevented him from filing within the prescribed time. The court was required to determine whether these circumstances were sufficient to warrant an extension of the time limit.

The Fair Work Commission considered the evidence presented regarding the exceptional circumstances. The Commission found that Mr Bourne had acted with reasonable promptness in lodging his application once he was aware of the need to do so. It also found that Mr Bourne had a reasonable excuse for not lodging the application within the statutory period, as he had been misled by his former employer about the availability of an appeal process. The Commission concluded that the exceptional circumstances were sufficient to justify an extension of the time for filing the unfair dismissal application. Consequently, the court allowed the application to proceed despite being filed out of time.

The Fair Work Commission ordered that the application be accepted and that the matter proceed to a hearing on the merits of the unfair dismissal claim. The decision underscored the importance of considering exceptional circumstances when determining whether to extend the time for filing an unfair dismissal application.

Orders