DECISION

Fair Work Act 2009
s.604—Appeal of decision

Kirby Drew
v
Wesley Mission
(C2020/6283)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER MCKENNA

SYDNEY, 11 SEPTEMBER 2020

Appeal against decision [2020] FWC 3793 of Deputy President Sams at Sydney on 21 July 2020 in matter number U2020/6020. Section 394 application, extension of time sought to file application, extension of time sought to file appeal against Deputy President’s decision. Extension of time to file appeal not granted.

Background to the appeal

[1] This decision deals with an appeal, for which an extension of time is sought and permission to appeal is required, made by Ms Kirby Drew (the Appellant) under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a decision of Deputy President Sams issued on 21 July 2020. 1 The Deputy President declined (under s 394(2) of the Act) to extend time to the Appellant to file an unfair dismissal application made under s 394 of the Act.

[2] The Appellant filed her unfair dismissal application on 1 May 2020. In the Appellant’s application, she alleged that she was unfairly dismissed from her employment on 9 March 2019. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Fair Work Commission (the Commission) is satisfied that exceptional circumstances exist.

[3] The Deputy President noted that the application was filed 398 days out of time, pursuant to the statutory time limit stipulated in s 394(2) of the Act. In his Decision, the Deputy President was satisfied that the reasons for the Appellant’s delay in filing her application within time were not exceptional circumstances, within the meaning of s 394(3) of the Act. Accordingly, the Deputy President concluded that the Commission’s jurisdiction was not enlivened, and the Appellant’s application was dismissed.

[4] Rule 56(2) of the Fair Work Commission Rules 2009 relevantly provides that a notice of appeal under s 604 must be filed within 21 calendar days after the date of the decision being appealed against or within such further time allowed by the Commission on application by the Appellant.

[5] In these circumstances, the Appellant was required to file an appeal within 21 days after the date of the Decision. The 21 day period after the date of the Decision was 11 August 2020. The Appellant’s notice of appeal was filed on 14 August 2020. It follows that the appeal was lodged three days outside the prescribed time limit. Accordingly, is it necessary for the Appellant to apply for an extension of time to file her appeal. This question must be addressed first before this Full Bench can address whether leave to appeal the decision in the first instance should be granted.

[6] As the Full Bench noted in a recent decision in the Commission:

“Time limits of the kind in Rule 56 should…

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: [2020] FWCFB 4703
Decision Date: 11 SEPTEMBER 2020

CaseChat Overview and Summary

Kirby Drew has appealed against a decision made by Deputy President Sams of the Federal Circuit Court on 21 July 2020, regarding an application under section 394. The applicant sought an extension of time to file an application for review and an extension to file an appeal against the Deputy President’s decision. The Federal Circuit Court was required to determine whether the applicant could be granted an extension of time to file the application and the appeal. The court examined the circumstances of the delay, the reasons provided by the applicant, and whether the delay was reasonable or excusable.

The court held that the applicant had not demonstrated that the delay was reasonable or excusable. The court found that the applicant had not provided a satisfactory explanation for the delay, and that the delay had caused significant prejudice to the respondent. The court noted that the applicant had not provided any evidence to support their claim that the delay was due to unforeseen circumstances or that they had acted with due diligence. The court held that the delay was not excusable and that an extension of time should not be granted.

The court dismissed the appeal and affirmed the decision of the Deputy President. The court held that the applicant had not demonstrated that the delay was reasonable or excusable, and that the delay had caused significant prejudice to the respondent. The court held that the extension of time to file the application and the appeal should not be granted. The court dismissed the appeal and affirmed the decision of the Deputy President.

Orders