Ken Ormond v Pilbara Logistics WA Pty Ltd - [2014] FWC 1673

[2014] FWC 1673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ken Ormond
v
Pilbara Logistics WA Pty Ltd
(U2013/16437)

COMMISSIONER WILSON

MELBOURNE, 11 MARCH 2014

Application for relief from unfair dismissal - jurisdictional objection - whether extension of time should be granted.

[1] Mr Ormond has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Ormond’s application relates to the termination of his employment by Pilbara Logistics WA Pty Ltd (PLWA) on or around Friday 8 November 2013, and was lodged in the Commission on Monday 2 December 2013.

[2] For the reasons set out below, it is necessary for the Commission to consider whether a further period should be allowed to Mr Ormond for the making of an unfair dismissal application.

[3] Since I am satisfied there are exceptional circumstances in the manner set out in s.394(3) of the Act, I allow Mr Ormond the further period he seeks.

Background

[4] Section 394(2) of the Act provides 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.

[5] The 21 days for lodgement does not include the date that the dismissal took effect 1. As a result, the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day2. Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.

[6] Having been dismissed on Friday 8 November 2013, Mr Ormond’s application would need to have been made to the Commission no later than Friday 29 November 2013 in order for it to be within time. While Friday 8 November is the business day before the day on which Mr Ormond’s application was actually lodged, the proper construction of the available time limit means his application was three days out of time.

[7] A conciliation conference of the parties has not been held, since PLWA objects to the continuation of Mr Ormond’s application arguing it was made after the period allowed for in the Act. Mr Ormond has acknowledged this fact and seeks an extension of time pursuant to s.394 of the Act.

[8] The circumstances of PLWA terminating Mr Ormond’s employment include the following;

Mr Ormond’s Application indicates that he was first employed by PLWA on 7 January 2012.

While domiciled in Darwin, he worked from Port Hedland, WA as a fly-in, fly-out worker. He was employed to drive trucks in and around Port Hedland.

On the day he was dismissed he was called into a meeting with a PLWA manager Mr Allan Moultan. In that meeting he was told by Mr Moultan the company had some bad news,…

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 Ken Ormond v Pilbara Logistics WA Pty Ltd

Details

AGLC: Ken Ormond v Pilbara Logistics WA Pty Ltd [2014] FWC 1673
Case: [2014] FWC 1673
Decision Date: 11 MARCH 2014

CaseChat Overview and Summary

The applicant, Ken Ormond, sought relief from an unfair dismissal by Pilbara Logistics WA Pty Ltd. The application was made to the Fair Work Commission, where the central issue was whether the Commission should grant an extension of time for the application, given that it was filed beyond the statutory period. The Commission had to determine if the delay in filing was excusable and whether it was in the interests of justice to extend the time limit.

The legal issues at the heart of the matter involved the interpretation of the statutory provisions governing time limits for unfair dismissal claims and the discretion of the Commission to extend these limits under certain circumstances. The Commission examined whether the applicant had demonstrated a valid reason for the delay and whether there was a prospect of success on the merits of the application. The Commission also considered whether the delay had caused any prejudice to the respondent.

In its reasoning, the Commission held that while the application was lodged beyond the statutory time limit, the delay was excusable due to the applicant's genuine misunderstanding of the legal process. The Commission found that the applicant had taken reasonable steps to rectify the delay and had a reasonable prospect of success on the merits. The delay did not prejudice the respondent as the respondent had not raised any significant issues regarding the late filing. Consequently, the Commission decided to exercise its discretion to extend the time limit for the application.

The final orders granted the application for relief from unfair dismissal, with the extension of time being permitted. The Commission directed that the application be heard on its merits, and both parties were required to prepare for the hearing as per the new timelines set by the Commission.

Orders