DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Liam Hambridge
v
Spotless Facilities Services Pty Ltd
(U2017/1338)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 18 APRIL 2017

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting a further period for the making of an application - application dismissed.

[1] Mr Liam Hambridge (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 9 February 2017 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Spotless Facilities Services Pty Ltd (Spotless – the Respondent) on 25 November 2016 was unfair.

[2] The Commission wrote to Mr Hambridge on 10 February 2016 advising him that his application was received outside the 21 day statutory timeframe in which an unfair dismissal application must be lodged and that a decision to extend the time in which he was allowed to lodge his claim would need to precede the determination of the merits of his application. Mr Hambridge’s application was lodged 55 days outside the 21 day statutory timeframe. The Commission further advised Mr Hambridge that conciliation on his application would be conducted by a Commission conciliator on 15 March 2017. The Commission wrote in similar terms to the Respondent.

[3] Conciliation did not resolve the matter. Accordingly, the matter was listed for mention and directions on 6 April 2017 with both parties agreeing that the Commission should hear them on the extension of time issue at that time. At the hearing Mr Hambridge appeared on his own behalf, while Ms Celia Yuen, Spotless’ Head of Group Workplace Relations and HR Legal, appeared for Respondent.

[4] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and will be dismissed.

Background

[5] On 21 November 2016, i.e. prior to his dismissal on 25 November 2016, Mr Hambridge lodged an application for an order to stop bullying with the Commission 1. That application was discontinued by Mr Hambridge on 1 December 2016. I note that in his bullying application Mr Hambridge stated:

“I have discussed with a solicitor who advised if I was dismissed I could go for unfair dismissal but they are too costly to address the current matters before dismissal takes place” 2

[6] On 9 December 2016 Mr Hambridge lodged a general protections application 3 with the Commission. The covering email attached to Mr Hambridge’s general protections application stated:

“Please see attached F8 application for unfair dismissal lodged by Liam Hambridge against Spotless Pty Ltd.”

[7] In its Form F8A—Response to general protections application Spotless denied that there was any adverse action against Mr Hambridge because he proposed to exercise a workplace right. The response did not refer to unfair dismissal.

[8] Mr Hambridge’s general protections application was listed for conciliation on 7…

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: [2017] FWC 2148
Decision Date: 18 APRIL 2017

CaseChat Overview and Summary

In the matter of Liam Hambridge versus Spotless Facilities Services Pty Ltd, the applicant, Mr. Hambridge, sought relief from an unfair dismissal decision rendered by the respondent, Spotless Facilities Services Pty Ltd. The matter was heard in the Fair Work Commission. Mr. Hambridge's primary contention was that he was unfairly dismissed and sought to extend the time within which he could make an application for relief. The employer, Spotless Facilities Services Pty Ltd, argued that the applicant had not provided any exceptional circumstances that would justify an extension of time.

The court was required to determine whether the applicant had presented sufficient grounds to warrant an extension of time for making the application for relief from unfair dismissal. The court had to consider the nature of the exceptional circumstances that might justify such an extension and assess whether the applicant's reasons for the delay were both plausible and significant enough to merit consideration.

The Fair Work Commission held that the applicant had failed to demonstrate exceptional circumstances that would warrant an extension of time. The Commission found that the applicant's reasons for the delay were not compelling enough to justify relief. As such, the application for an extension of time was dismissed. The Commission concluded that the applicant had not provided a satisfactory explanation for the delay in making the application for relief from unfair dismissal.

Consequently, the Fair Work Commission dismissed the application for an extension of time and affirmed the earlier decision regarding the unfair dismissal. No further orders were made by the Commission.

Orders