Keith Horgan v Spredfast Australia Pty Ltd

[2017] FWC 2176

[2017] FWC 2176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Keith Horgan
v
Spredfast Australia Pty Ltd
(U2016/11148)

COMMISSIONER JOHNS SYDNEY, 20 APRIL 2017

Application for costs – application made out of time.

Introduction

[1] On 6 September 2016 Keith Horgan (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by Spredfast Australia Pty Ltd (Spredfast/employer/respondent).

[2] On 23 September 2016 Spredfast filed a response to the unfair dismissal application. It objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it submitted:

a) the dismissal was a case of genuine redundancy,

b) the applicant earned more than the high income threshold, and

c) the applicant had executed a binding Deed of Release.

[3] On 20 December 2016 the Commission issued Directions for the filing and service of materials and for a jurisdictional hearing to be held on 24 January 2017. The jurisdictional hearing was subsequently relisted for 8 February 2017 and then again for 28 February 2017.

[4] At 4.22 pm on 27 February 2017 the applicant filed a Notice of Discontinuance.

[5] On 15 March 2017 (i.e. 16 days after the filing of the Notice of Discontinuance) the respondent filed an Application for Costs against the applicant.

[6] On 15 March 2017 the Commission issued Directions for the filing and service of materials and for a costs hearing to be held on 21 April 2017 (later vacated).

[7] On 16 March 2017 the applicant objected to the Application for Costs on the basis that the application was not made within 14 days of the unfair dismissal application being discontinued.

[8] On 17 March 2017 the respondent was invited to make a submission about how the Commission has jurisdiction to hear the Application for Costs in the face of section 402 of the FW Act.

[9] Section 402 of the FW Act provides as follows,

“An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:
   (a)  the FWC determines the matter; or
   (b)  the matter is discontinued.”

[10] On 18 March 2017 the respondent’s Chief Legal Officer responded as follows,

“

1. I am the in-house legal counsel for Spredfast and took responsibility for filing this matter. We instructed our outside counsel to cease working on the matter to say further legal costs. However, unfortunately, I was in an accident and suffered a concussion. This caused me to miss several days’ work. This was the reason for the delay in submitting the application….

2. The deadline was not missed by any substantial period of time, and consequently would not result any harm to [the applicant]. However, it would result in harm to [Spredfast] due to no fault of [Spredfast].”

[11] On 20 March 2017 the applicant responded as follows,

“From looking through the form it was filled out by Ms Howard and Ms Frudge and could have been lodged by Ms Howard well within the time period. The date signed and filled in on the form is 1st March but yet it wasn’t lodged until the 15th March.”

[12] On 20 March 2017 the Commission, as presently constituted, proposed to the parties that the out of time issue be determined on the papers. The parties were provided with an opportunity to object to that course of action. Neither of them took up an opportunity to object.

Consideration

[13] It is not uncommon for the Commission to have to decide upon applications for extensions of time. They often occur in the context of unfair dismissal applications or general protections claims involving dismissal. However, the legislative scheme, in relation to extensions of time in those contexts, differs greatly to section 402.

[14] In relation to general protections matters involving dismissal section 366 of the FW Act provides that,

“(1)  An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or
(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and
(b)  any action taken by the person to dispute the dismissal; and
(c)  prejudice to the employer (including prejudice caused by the delay); and
(d)  the merits of the application; and
(e)  fairness as between the person and other persons in a like position.”

[15] In relation to unfair dismissal matters section 394 of the FW Act provides that,

“(1)  A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or
(b)  within such further period as the FWC allows under subsection (3).

(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and
(b)  whether the person first became aware of the dismissal after it had taken effect; and
(c)  any action taken by the person to dispute the dismissal; and
(d)  prejudice to the employer (including prejudice caused by the delay); and
(e)  the merits of the application; and
(f)  fairness as between the person and other persons in a similar position.”

[16] What can be readily observed is that, in enacting sections 366 and 394 of the FW Act, the Parliament expressly provided for a mechanism by which the Commission may allow a further period for the relevant application to be made.

[17] No such mechanism is to be found in section 402 of the FW Act.

[18] Consequently, it follows that the Commission does not have the power to allow a further period for the making of an Application for Costs

[19] In circumstances where the Application for Costs made by the Sredfast was 2 days outside the 14 day statutory requirement, the Application for Costs must be dismissed.

[20] An order to that effect will be issued with this Decision.

COMMISSIONER

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