DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jack Larkin
v
Sky Channel Pty Ltd
(U2021/5873)

COMMISSIONER P RYAN

SYDNEY, 2 SEPTEMBER 2021

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

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

[2] The unfair dismissal application was lodged on 5 July 2021 and identified the respondent as “Tabcorp Limited Trading as Tabcorp Sky Division” and stated the date of dismissal was 9 June 2021.

[3] Section 394(2) of the FW 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 June 2021. The application was therefore filed 5 days outside the 21 day period. This means the application can only proceed if the Commission grants a further period for the application to be made under s.394(3).

[4] On 15 July 2021, prior to the allocation of this matter to my chambers, correspondence was sent to the parties from the chambers of Vice PresidentCatanzariti seeking that the Applicant provide reasons as to why an extension should be granted having regard to the matters in s.394(3) of the FW Act, and for the Respondent to file a Form F3 – Employer Response to the application.

[5] The matter was subsequently allocated to my chambers.

[6] On 23 July 2021, an F3 Response was lodged disputing that Tabcorp Limited or TAB Limited was the employer and identifying the correct employer as “Sky Channel Pty Ltd”. In addition, the F3 Response did not dispute the date of dismissal as 9 June 2021 and opposed any further period for the application to be made under s.394 (3).

[7] On 29 July 2021, a case management and directions hearing was conducted to deal with issue of the correct employer, and program the application for an extension of time for hearing.

[8] On 30 July 2021, the Applicant made an application pursuant to s.586 of the FW Act to amend the respondent to “Sky Channel Pty Ltd”, which was not opposed. On 2 August 2021, I issued an order 1 amending the respondent in the matter to “Sky Channel Pty Ltd” (Respondent).

[9] On 2 August 2021, directions were issued by my chambers giving both parties an opportunity to file any additional materials in support of, or in opposition to, the Applicant’s application for an extension of time.

[10] The matter proceeded as a hearing 2 via Microsoft Teams Video at 10.00am on 24 August 2021. I exercised my discretion to grant permission to the parties to be represented by lawyers, as I was satisfied as to the matters set out in…

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.

Keep reading for free

Create a free CaseChat account to read Jack Larkin v Sky Channel Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 5480
Decision Date: 2 SEPTEMBER 2021

CaseChat Overview and Summary

Jack Larkin brought an application against Sky Channel Pty Ltd for unfair dismissal, which was filed outside the statutory time limit. The dispute was heard in the Fair Work Commission, which was required to determine whether the application was filed within the allowable timeframe and, if not, whether the circumstances were exceptional enough to warrant an extension. The primary legal issue was whether the applicant's delay in lodging the application was justifiable under the circumstances. The Commission considered the statutory requirements for filing such applications and assessed whether the delay was due to circumstances beyond the applicant's control or if there were any other mitigating factors. After evaluating the evidence and arguments presented by both parties, the Commission found that the delay was not due to exceptional circumstances and dismissed the application for unfair dismissal. The Commission held that the statutory time limit was not met, and no exceptional circumstances existed to warrant an extension of time. Consequently, the applicant's claim for unfair dismissal was denied, and the application was dismissed.

Orders