DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Bechara Bitar
v
Australian Postal Corporation
(U2020/12639)

DEPUTY PRESIDENT DEAN

SYDNEY, 16 NOVEMBER 2020

Application for an unfair dismissal remedy – extension of time – no extension granted

[1] This decision concerns an application by Mr Michael Bechara Bitar (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant was employed by the Australian Postal Corporation (Respondent) since February 1979. He had performed a range of roles with the Respondent and at the time of his dismissal held the position of Operations Manager/Manager Network Logistics NSW/ACT at the Respondent’s Sydney West Letters Facility (SWLF).

[3] The Applicant was notified on 30 July 2020 that his position was made redundant and that his last day of work was 28 September 2020.

[4] 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).

[5] The Applicant’s unfair dismissal application was lodged on 21 September 2020. The period of 21 days for the Applicant to file his application ended at midnight on 18 September 2020. The Applicant now asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[6] 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’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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

[7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

Reason for the delay

[8] The Act does not specify what reasons for delay tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the…

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 Michael Bechara Bitar v Australian Postal Corporation

Details

AGLC: Michael Bechara Bitar v Australian Postal Corporation [2020] FWC 6095
Case: [2020] FWC 6095
Decision Date: 16 NOVEMBER 2020

CaseChat Overview and Summary

In the case of Michael Bechara Bitar v Australian Postal Corporation, the applicant sought an unfair dismissal remedy. The applicant alleged he was dismissed by the respondent, Australian Postal Corporation, under circumstances that constituted an unfair dismissal. The application was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the applicant was entitled to an extension of time to lodge his application for unfair dismissal remedy, as he had missed the statutory deadline by a single day. Additionally, the court had to determine whether the delay in lodging the application was justified, given that the applicant had acted promptly once he became aware of his dismissal.

The court examined the statutory provisions regarding the time limits for filing an unfair dismissal application and considered the principles governing extensions of time. The applicant argued that the delay was due to the respondent's failure to provide him with a termination letter, which was a critical document in understanding the grounds for dismissal. The court acknowledged the importance of the timeliness of such applications but found that the applicant's delay was not sufficiently justified. The court held that the applicant's conduct did not amount to exceptional circumstances warranting an extension of time.

Consequently, the court dismissed the applicant's application for an unfair dismissal remedy, finding that the delay in lodging the application was not justified. The court did not grant the extension of time sought by the applicant, and as a result, the application was considered out of time. The decision concluded that the applicant's dismissal did not meet the criteria for an unfair dismissal remedy under the applicable legislation.

Orders