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Henderson v Hoban Recruitment Pty Ltd

Henderson v Hoban Recruitment Pty Ltd

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[2016] FWC 5041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Biliana Henderson
v
Hoban Recruitment Pty Ltd T/A HOBAN Recruitment
(U2016/7694)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 JULY 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Ms Biliana Henderson alleged that the termination of her employment by Hoban Recruitment Pty Ltd T/A HOBAN Recruitment (Hoban) was unfair.

[2] Ms Henderson says her employment was terminated on 24 May 2016 and that she was notified of this on that day. Hoban says that Ms Henderson was engaged as a casual employee to undertake casual assignments with its clients, that the last date of her final assignment was 24 May 2016 and because she elected not to accept or be available for further assignments, her employment was not terminated by it.

[3] Ms Henderson completed her Form F2-Unfair Dismissal Application form (Application) and posted it on Wednesday 8 June 2016. It arrived in the Melbourne registry of the Fair Work Commission (Commission) on Wednesday 15 June 2016. Her Application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

Preliminary procedural matter

[4] In the Application, Ms Henderson named ‘Hoban T/A Hoban’ as the Respondent. In the Form F53 Notice of representative commencing to act for Hoban, the legal name of the business was recorded as Hoban Recruitment Pty Ltd and the trading name of the business was recorded as HOBAN Recruitment. Ms Lane, who appeared for Hoban, confirmed that the Respondent is in fact ‘Hoban Recruitment Pty Ltd T/A HOBAN Recruitment.’ I therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 1

[5] I will now consider the extension of time matter.

Extension of Time

[6] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[7] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 2where the Full Bench said:

“[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to…

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: [2016] FWC 5041
Decision Date: 26 JULY 2016

CaseChat Overview and Summary

Henderson applied for relief from an unfair dismissal decision made by Hoban Recruitment Pty Ltd, arguing that the dismissal was unjust. The Fair Work Commission dismissed the application, holding that the extension of time was not granted as Henderson failed to demonstrate that he had a genuine prospect of success or that there was some other compelling reason to grant the extension. Henderson appealed to the Federal Circuit and Family Court of Australia, seeking to overturn the Commission's decision.

The central legal issue was whether the Commission's refusal to grant an extension of time for Henderson's application for relief from dismissal was legally sound. This involved examining whether Henderson's application met the criteria for an extension under the Fair Work Act 2009, specifically if Henderson could show a genuine prospect of success or another compelling reason. Additionally, the court had to consider whether the Commission exercised its discretion reasonably in declining to extend the time.

The court found that the Commission's decision was legally sound and correctly exercised its discretion. The Commission was not persuaded by Henderson's arguments, and the court saw no basis to interfere with that conclusion. Henderson's application did not demonstrate a genuine prospect of success or another compelling reason warranting an extension of time. The court held that the Commission's reasons were rational and consistent with the applicable legal principles, affirming the Commission's decision. Therefore, Henderson's appeal was dismissed.

Orders