Malcolm Stephens v Thiess Services Pty Ltd T/A Thiess - [2014] FWC 330

[2014] FWC 330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Malcolm Stephens
v
Thiess Services Pty Ltd T/A Thiess
(U2013/9909)

COMMISSIONER JOHNS

MELBOURNE, 13 JANUARY 2014

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Malcolm Stephens (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his finally completed application was lodged on 25 September 2013, that being 216 days after his employment was terminated by Thiess Services Pty Ltd (Respondent) on 21 February 2013. Accordingly, the matter proceeded by way of a jurisdictional hearing.

Preliminary matter - permission to be represented

[3] On 22 November 2013 the Respondent sought permission from the Commission for it to be represented by a lawyer, namely Tim Lange from Piper Alderman. It was necessary to determine this preliminary matter at the outset to ensure that the manner in which any jurisdictional hearing was conducted was fair and just having regard to the decision of the Federal Court of Australia in Warrell v FWC [2013] FCA 291.

[4] In Warrell v FWC the Federal Court held that,

A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus…

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: [2014] FWC 330
Decision Date: 13 JANUARY 2014

CaseChat Overview and Summary

The case of Malcolm Stephens against Thiess Services Pty Ltd, trading as Thiess, was heard in the Fair Work Commission. Malcolm Stephens sought relief from his dismissal, which he believed was unfair, and requested an extension of the time to lodge his application. Thiess opposed the extension, arguing that the delay was unreasonable and would cause them prejudice.

The primary legal issue before the Commission was whether the Fair Work Act permitted an extension of the time for lodging an unfair dismissal application, and if so, under what circumstances. The Commission needed to determine if Stephens' delay in lodging his application was justified and whether granting the extension would prejudice Thiess.

The Commission found that while the Act generally mandates strict time limits for lodging unfair dismissal applications, exceptions can be made if the delay is justified and there is no substantial prejudice to the respondent. In this case, the Commission considered Stephens' reasons for the delay, which included medical issues and confusion regarding his legal rights. The Commission concluded that Stephens had shown sufficient justification for the delay and that Thiess would not be substantially prejudiced by the extension. Therefore, the application for an extension of time was granted.

The Fair Work Commission granted the application for an extension of time for Stephens to lodge his unfair dismissal application, allowing him to proceed with his claim against Thiess.

Orders