REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chelsea Jane McRae
v
Peerless Products Pty. Ltd.
(U2018/345)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 16 APRIL 2018

Application for an unfair dismissal remedy - application made outside the time prescribed - whether there are exceptional circumstances - extension of time refused - application dismissed.

[1] This is an edited version of my decision given ex tempore and recorded in transcript on 6 April 2018.

[2] Miss Chelsea Jane McRae (applicant) made an application on 10 January 2018 for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (the Commission) allows under s.394(3). The date that the applicant’s dismissal took effect is identified in her application as 15 December 2017, but she did not lodge her application until 10 January 2018. The applicant seeks an extension of time as her application was filed 26 days after her dismissal took effect. The applicant’s former employer, Peerless Products Pty. Ltd. (respondent), opposes the granting of an extension of time.

[4] I conducted the hearing by telephone on 6 April 2018. The applicant appeared for herself and gave evidence. The respondent was represented by Mr Thomas Page of the Victorian Chamber of Commerce and Industry, with permission pursuant to s.596 of the Act.

[5] The Commission has to be satisfied, pursuant to the Act, that there are exceptional circumstances to allow an extension of time. I rely on a decision of the Full Bench of the Commission in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 1, where the Full Bench stated:

‘[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 to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.’

[6] Turning to deal with specific factors, under s.394(3)(a) of the Act, I need to have regard to the reason for the delay. A number of reasons…

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 McRae v Peerless Products Pty Ltd

Details

AGLC: McRae v Peerless Products Pty Ltd [2018] FWC 2173
Case: [2018] FWC 2173
Decision Date: 16 APRIL 2018

CaseChat Overview and Summary

The case of McRae v Peerless Products Pty Ltd involved the applicant, Mr. McRae, who sought an unfair dismissal remedy from his former employer, Peerless Products Pty Ltd. The dispute centred on the applicant's claim that his dismissal was unfair under the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The central legal issue before the court was whether the application for unfair dismissal remedy, which was made outside the prescribed time limit, could be considered despite the delay. Specifically, the court needed to determine if there were exceptional circumstances that justified extending the time limit for the application.

In examining the case, the court noted that the statutory time limits for making an unfair dismissal application are strict and generally cannot be extended unless there are exceptional circumstances. The applicant argued that there were exceptional circumstances due to delays caused by the respondent’s failure to provide necessary documentation. However, the court found that the applicant had not demonstrated any genuine delay attributable to the respondent. The court held that the applicant's own delays in taking legal action were not sufficient to constitute exceptional circumstances. Consequently, the application for an extension of time was denied, and the application for unfair dismissal remedy was dismissed.

The Fair Work Commission ruled that the application for unfair dismissal remedy was dismissed due to the failure to meet the prescribed time limit for filing the application. The court found that the applicant did not present any exceptional circumstances that would warrant an extension of the time limit. As a result, the application was denied, and no unfair dismissal remedy was granted to the applicant.

Orders