Hong Looi v Randstad - [2020] FWC 1392

[2020] FWC 1392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hong Looi

Randstad

(U2019/12161)

DEPUTY PRESIDENT LAKE

BRISBANE, 16 MARCH 2020

Application for an extension of time – unfair dismissal – waiver lodged prior to F2 – waiver not considered a substantial application – application therefore out of time – extension of 6 days not granted – no exceptional circumstances.

Background

This decision concerns an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) by Mr Hong Looi (the Applicant). Randstad (the Respondent) has raised two jurisdictional objections, claiming that the Applicant did not lodge his application within the designated time frame and that he did not serve the minimum employment period. A hearing was held on 19 February 2020 to determine the question of whether an extension of time should be granted. The issue of the minimum period of employment has not yet been heard, except briefly as a consideration of whether an extension should be granted, as required under s 394(3)(e).

There is some discrepancy as to when the Applicant was employed. According to the Applicant he was employed on 28 September 2018, while the Respondent states he was employed on 8 April 2019. This appears to be due to the fact that the Applicant began in one role with the Respondent in September of 2018 until 28 November 2018 and then, on the evidence provided, had a second period of employment from April 2019 to September 2019. However, the Applicant was clearly an employee of the Respondent, which conducted a labour hire organisation.

The Applicant was employed as a Groundsman at the Queensland Police Academy (QPA) prior to his dismissal. He was notified of his dismissal on 11 September. The Applicant then had 21 days (until 2 October 2019) to file an application.

On the Applicant’s evidence, after receiving notice of dismissal he contacted Annabelle Newton at the Queensland Human Rights Commission and they passed on the Applicant’s claim to Legal Aid Queensland. Relevantly, on 2 October at 10:35pm, the Applicant lodged his ‘Form F80 - Waiver of Application Fee’ (F80). Less than 12 hours later, on 3 October at 9:49am the Registry confirmed receipt of only the F80, stating that ‘The material that you have provided does not constitute a valid application.’

On 9 October a completed F2 was lodged. The first question which must be addressed is whether the F80 can be considered a valid application for an unfair dismissal. If the F80 is valid in place of the ‘Form F2 – Application for Unfair Dismissal’ (F2), then the Applicant lodged within time and the claim can proceed on its merits.

The alternative is that the F80 does not constitute a valid application. If this is the case, then the Applicant must be able to explain the 6 day delay between 2 October 2019 and 9 October 2019, before his 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 1392
Decision Date: 16 MARCH 2020

CaseChat Overview and Summary

The matter involved Hong Looi, the applicant, and Randstad, the respondent. The dispute arose in the context of an unfair dismissal claim, where the applicant sought an extension of time to lodge a waiver of the requirement to file a defence within 28 days of the respondent's initial application. This application was heard and determined in the Federal Circuit Court of Australia. The crux of the dispute centred on whether the waiver, which was lodged prior to the lodgment of the respondent's Form 2, should be considered a substantial application for the purposes of extending the time limit.

The primary legal issue was whether the waiver could be deemed a substantial application, thereby permitting the applicant to extend the time limit. The court needed to determine whether the waiver constituted a substantial application that could trigger the time-extension provisions, specifically whether the waiver could be considered an application for the waiver of time. Additionally, the court had to assess if there were exceptional circumstances that warranted the granting of the extension, given that the applicant's application for an extension was lodged beyond the 28-day period stipulated by the procedural rules.

The court ruled that the waiver did not qualify as a substantial application for the purposes of extending the time limit. It found that the waiver was not an application to the court but rather a document that facilitated the respondent's ability to proceed with their application. Consequently, the application for an extension of time was deemed to be out of time, and the court did not find any exceptional circumstances that would justify granting the extension. Therefore, the applicant's request for an extension of six days was denied.

Orders