DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Simari
v
Australian Aged Care Group Pty Ltd
(U2019/11163)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 29 JANUARY 2020

Application for an unfair dismissal remedy – jurisdictional objection – application filed out of time – circumstances not exceptional – application dismissed

[1] This decision concerns an application by Mr Matthew Simari for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Simari was employed as a personal care attendant by Australian Aged Care Group Pty Ltd (ACG). On 10 September 2019, he was dismissed for serious misconduct. According to the company, on 30 August 2019, Mr Simari engaged in a very abusive and threatening verbal tirade against the company’s director of care, Ms Catherine Klomp, causing her to fear for her safety, and resulting in Mr Simari being escorted from the premises by the police. Mr Simari contests the company’s characterisation of events and contends that his dismissal was unfair.

[2] ACG objects to Mr Simari’s unfair dismissal application on a jurisdictional ground, namely that the application was not lodged within 21 days after the dismissal took effect, as required by s 394(2)(a) of the Act.

[3] The jurisdictional objection was heard before me on 24 January 2020. ACG was represented by a paid agent, with permission under s 596 of the Act. Ms Claire Dewan, ACG’s human resources manager, gave evidence for the company. Mr Simari appeared and gave evidence on his own behalf.

[4] It is common ground that Mr Simari’s dismissal took effect on 10 September 2019 and that his unfair dismissal application was filed on 4 October 2019. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 1 October 2019. Mr Simari’s application was therefore lodged three days late. He asks the Commission to grant a further period for the application to be made.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty), 1 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.2

[6] The decision in Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of…

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] FWC 403
Decision Date: 29 JANUARY 2020

CaseChat Overview and Summary

The applicant, Matthew Simari, sought relief from the Fair Work Commission (FWC) for an unfair dismissal remedy against the respondent, Australian Aged Care Group Pty Ltd. The primary contention was whether the FWC had the authority to hear the application, given that it was filed beyond the statutory time limit for such claims. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the FWC had jurisdiction to entertain the application despite it being lodged after the prescribed period. The court needed to determine if the circumstances surrounding the delay were exceptional enough to warrant an extension of the time limit under the Fair Work Act 2009. The court also had to consider whether the application should be dismissed outright due to the procedural default.

The court found that the application was indeed filed beyond the statutory time limit. The applicant argued that the delay was due to certain mitigating circumstances; however, the court held that these circumstances were not sufficiently exceptional to justify an extension of time. The court was particularly concerned with the applicant's failure to promptly seek legal advice and the absence of any evidence of exceptional hardship or prejudice. As a result, the court concluded that the application should be dismissed. The jurisdictional objection was upheld, and the application for an unfair dismissal remedy was denied.

The court's final order was that the application for an unfair dismissal remedy was dismissed. The FWC's jurisdiction was found to be properly invoked, but the timeliness of the application was a critical factor in the outcome. The court did not find the circumstances exceptional enough to warrant an extension of the time limit for filing the application.

Orders