DECISION

Fair Work Act 2009
s.394—Unfair dismissal

K
v
The Employer
(U2021/8089)

COMMISSIONER BISSETT

MELBOURNE, 20 OCTOBER 2021

Application for an unfair dismissal remedy – extension of time – exceptional circumstances found – no utility in granting extension of time – extension of time not granted – application dismissed

[1] Mr K 1 (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy alleging that he had been unfairly dismissed from his employment with the Employer (Respondent).

[2] The information provided in the application indicates that the application has been made out of time.

[3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

PRELIMINARY MATTERS

Submissions

[4] The Applicant filed submissions in the Commission on 26 and 27 September 2021. The Respondent filed submissions in the Commission on 5 October 2021

Witnesses

[5] The Applicant gave evidence on his own behalf.

When did the dismissal take effect?

[6] It is not in dispute and I find that the dismissal took effect on 21 December 2020.

When was the application made?

[7] It is not in dispute and I find that the application was made on 6 September 2021.

Conference or hearing

[8] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[9] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).

[10] The Applicant represented himself. The Respondent was represented by a lawyer for whom permission had been earlier granted by me for this matter.

Permission

I have previously granted the Respondent permission to be represented by a lawyer pursuant to s.596(2) of the FW Act.

WHEN MUST AN UNFAIR DISMISSAL APPLICATION FOR BE MADE?

[11] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

[12] As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 2

[13] As I found above, the dismissal took effect on 21 December 2020. The final day of the 21 day period was therefore 11 January 2021 and ended at midnight on that day. The application was made on 6 September 2021, 238 days after the end of the 21 day period.

[14] The application was therefore not made within 21 days of the date on which the dismissal…

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.

Continue reading K v The Employer

Details

AGLC: K v The Employer [2021] FWC 6097
Case: [2021] FWC 6097
Decision Date: 20 OCTOBER 2021

CaseChat Overview and Summary

The case involved a claim for unfair dismissal remedy against an employer. The applicant, referred to as K, sought to have the time limit for lodging the unfair dismissal application extended due to exceptional circumstances. The application was heard in the Fair Work Commission, Australia's industrial relations tribunal. The dispute centred on whether the tribunal had the jurisdiction to extend the time limit for lodging the unfair dismissal application, and if so, whether the circumstances were exceptional enough to warrant such an extension.

The legal issues before the tribunal were whether the applicant had demonstrated exceptional circumstances that prevented them from lodging the application within the prescribed time and whether the tribunal had the discretion to extend the time limit for making such an application. The applicant argued that the tribunal should exercise its discretion to grant an extension due to the exceptional circumstances that prevented them from lodging the application within the specified period. The employer contended that the tribunal should not extend the time limit as there was no utility in doing so and that the application should be dismissed.

The tribunal found that while the applicant had indeed faced exceptional circumstances, it was not in the interests of justice to grant an extension of time for lodging the unfair dismissal application. The tribunal noted that the applicant had not demonstrated any prejudice to the employer if the time limit was extended. The tribunal concluded that granting an extension would not serve any useful purpose and that the application should be dismissed. The tribunal did not find it appropriate to exercise its discretion to extend the time limit for making the unfair dismissal application.

The tribunal dismissed the application for an unfair dismissal remedy. The tribunal found that the applicant had not demonstrated exceptional circumstances that warranted an extension of time for lodging the application, and that granting such an extension would not serve any useful purpose. The tribunal held that it was not in the interests of justice to extend the time limit for making the unfair dismissal application. The application was dismissed.

Orders