Kyle Nicholas Dobson v Supercheap Auto - [2023] FWC 3203

[2023] FWC 3203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyle Nicholas Dobson
v

Supercheap Auto

(U2023/8902)

DEPUTY PRESIDENT LAKE

BRISBANE, 6 DECEMBER 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

Mr Kyle Dobson (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Supercheap Auto (the Respondent).
The Applicant commenced employment with the Respondent around December 2004 and was notified of his dismissal on 16 June 2023. The dismissal was effective on the same day.

The Applicant lodged his application on 15 September 2023. The application was lodged 70 days outside the statutory time limit prescribed by s.394(2) of the Act.

The question before me is therefore whether the Applicant should be granted an extension of time to lodge his application pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

Directions were issued and material was filed by each party. A hearing was held before me on 29 November 2023.

Should a further period be granted?

Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(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 like position.”

The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct…

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 Kyle Nicholas Dobson v Supercheap Auto

Details

AGLC: Kyle Nicholas Dobson v Supercheap Auto [2023] FWC 3203
Case: [2023] FWC 3203
Decision Date: 6 DECEMBER 2023

CaseChat Overview and Summary

In this case, Kyle Nicholas Dobson filed an application with the Fair Work Commission seeking a remedy for unfair dismissal, 70 days after the statutory limit prescribed by the Fair Work Act 2009. The Fair Work Commission was required to determine whether the Applicant should be granted an extension of time to lodge his application under section 394(3) of the Act. The key legal issue was whether the Applicant could demonstrate 'exceptional circumstances' for the delay, taking into account the various factors outlined in section 394(3) of the Act.

The Deputy President considered several factors, including the reason for the delay, whether the Applicant was aware of the dismissal, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and other persons in a like position. The Deputy President found that the Applicant's reasons for the delay, including technical difficulties with the form and lack of access to a printer, did not constitute exceptional circumstances. Furthermore, the Applicant had not taken any action to dispute the dismissal and had been aware of the potential for dismissal due to his poor performance. The merits of the application were considered neutral, and the consideration of fairness did not weigh in favour of an extension of time. Consequently, the Deputy President was not satisfied that exceptional circumstances existed in this matter.

The Deputy President dismissed the Applicant's application for an extension of time to lodge his unfair dismissal claim. The application was dismissed on the basis that the Applicant had not demonstrated exceptional circumstances for the delay in lodging the application.

Orders