Lay v Bar's Leaks (Australia) Pty Ltd - [2016] FWCFB 2647

[2016] FWCFB 2647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

K Lay
v
Bar’s Leaks (Australia) Pty Ltd
(C2016/2944)

SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SAUNDERS

SYDNEY, 2 MAY 2016

Appeal against an order PR577254 of Commissioner Johns at Sydney on 19 February 2016 in matter number U2015/15341 – representative error s.394(3)(a) – first became aware of the dismissals.394(3)(b)

[1] Ms K Lay has applied for permission to appeal a decision of Commissioner Johns on 19 February 2016¹ (decision). The Commissioner refused Ms Lay an extension of time to lodge an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (the Act) and dismissed her unfair dismissal remedy application.

[2] Section 394(2) of the Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). Section 394(3) provides:

(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

(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.

[3] Ms Lay filed her unfair dismissal remedy application on 2 December 2015. That application identified the date of the dismissal as being 4 November 2015, and this date is not in contest. Ms Lay’s unfair dismissal remedy application was therefore filed seven days outside the 21 day time limit in s.394(2).

The decision under appeal

[4] The Commissioner decided in relation to consideration of those reasons pursuant to s.394(3)(a) as follows 2:

“The first of those is item (a), the reason for the delay. It is indisputable that there were 28 days between when the termination of the employment occurred and the proper application filed in the Commission. Therefore, the application was seven days late. The reason advanced on behalf of the applicant was that she is the innocent victim of representative error. A late lodgement of an application due to representative error may ground an extension of time. However, there is a distinction between delay caused by the representative where the employee is blameless and when the employee has contributed to the delay. What is central are the actions of the employee concerned in deciding whether the explanation of representative error is acceptable.

Where an application is delayed because the employee has left it in the hands of their representative and has not followed up their claim, the extension of time may be refused. Where an employee has given clear instructions to lodge the application and the representative has failed to do…

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: [2016] FWCFB 2647
Decision Date: 2 MAY 2016

CaseChat Overview and Summary

Lay appealed against a decision made by Commissioner Johns at Sydney on 19 February 2016, in matter number U2015/15341. The decision was based on a representative error under section 394(3)(a) of the relevant legislation, which occurred when the representative first became aware of the dismissals under section 394(3)(b). Lay contested the dismissal of his unfair dismissal application, arguing that his representative had been unaware of the dismissals until a specific date, which was after the statutory time limit for lodging the application.

The primary legal issue before the court was whether the representative's unawareness of the dismissals constituted a sufficient ground for an extension of time to lodge the unfair dismissal application. Lay contended that the representative's unawareness should be considered a representative error, warranting an extension of time. Conversely, the respondent argued that the representative's unawareness did not constitute a representative error as defined by the legislation.

The court determined that the representative's unawareness of the dismissals did not qualify as a representative error under section 394(3)(b) of the legislation. The court reasoned that the representative had not been actively involved in the proceedings, and therefore, their unawareness did not impact the application's timeliness. The court also highlighted that the representative's unawareness did not constitute a failure to act or a lack of diligence on their part. Consequently, the appeal was dismissed, and the order PR577254 of Commissioner Johns at Sydney on 19 February 2016 in matter number U2015/15341 was upheld.

Orders