DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ivan Cowen
v
Renascent Regional Pty Ltd
(U2021/302)

DEPUTY PRESIDENT DEAN

SYDNEY, 16 MARCH 2021

Application for an unfair dismissal remedy – extension of time – application dismissed.

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

[2] The Applicant was employed by Renascent Regional Pty Ltd (the Respondent) until his employment was terminated on 3 December 2020 with immediate effect. His unfair dismissal application was lodged on 11 January 2021.

[3] 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 application in the present matter was filed 8 days 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).

[4] 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

[5] 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) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[6] The application was listed for hearing on 15 March 2021 to decide whether to extend time. Mr Michael Evans of Whiteley Ironside & Shillington Solicitors appeared with permission for the Applicant and Ms Erin Lynch of Vincent Young Lawyers appeared with permission for the Respondent.

Reason for the delay

[7] The Act does not specify what reasons for delay tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.³

[8] The Applicant and his representative, Mr Evans, both filed statements in support…

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 1365
Decision Date: 16 MARCH 2021

CaseChat Overview and Summary

Ivan Cowen, the applicant, sought an unfair dismissal remedy against Renascent Regional Pty Ltd, the respondent, in the Fair Work Commission. The primary dispute centred around the applicant's termination of employment and the subsequent application for relief under the Fair Work Act 2009. The legal issues before the court involved the timeliness of the application for unfair dismissal and whether an extension of time should be granted to the applicant. The respondent contested the application on the grounds that the applicant had not filed the application within the requisite statutory period, thereby questioning the jurisdiction of the court to hear the matter.

The court examined the statutory framework governing unfair dismissal claims, focusing on section 348 of the Fair Work Act 2009, which stipulates a strict timeframe for lodging such applications. The applicant argued for an extension of time on the basis of exceptional circumstances, citing delays caused by his attempts to resolve the matter with the respondent. However, the court found that the applicant had not demonstrated sufficient grounds to warrant an extension, given the lack of evidence supporting the claim of exceptional circumstances. The court held that the applicant's personal circumstances and delays did not justify an extension, and thus the application was time-barred.

As a result, the court dismissed the application for an unfair dismissal remedy. The decision emphasised the importance of strict adherence to statutory timelines in employment law matters and the limited circumstances under which extensions of time may be granted. The court's reasoning underscored the need for applicants to act promptly and within the prescribed periods to ensure their claims are considered on merit. Consequently, the application was dismissed, and no unfair dismissal remedy was granted to the applicant.

Orders