DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael David Charles Denton
v
Breakspear Nominees Pty Ltd
(U2019/12928)

DEPUTY PRESIDENT BEAUMONT

PERTH, 28 FEBRUARY 2020

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – extension of time not granted.

[1] Mr Denton applied for an unfair dismissal remedy on 20 November 2019, having been dismissed from Breakspear Nominees Pty Ltd (Breakspear) on 26 October 2019. Breakspear objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] It is not contested that Mr Denton’s application was made out of time. However, for his application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

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

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position. 1

[4] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted. It should be noted that when the application was made the respondent employer was named as ‘Breakspear Trading as Grand Cru Wineshop’. I permitted a change to the name of the respondent employer under s 586 of the Act - to Breakspear Nominees Pty Ltd.

Background

[5] Breakspear employed Mr Denton as a Retail Assistant. 2 His position included the responsibilities of opening the ‘Grand Cru’ store in Mount Lawley, restocking the store and dealing with deliveries.3

[6] Following incidents on 20 October and 23 October 2019, where it is asserted that Mr Denton effectively displayed irascible and intimidating conduct, the Managing Director of Breakspear emailed Mr Denton on 26 October 2019; the email stated:

…[I]t has been reported to me (in writing) that once again you have blown up at a staff member. The particular staff member has had to seek counselling and has been particularly distressed by your behaviour. What’s even more disappointing is that part of your blowup was about Charlie, the one…

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 David Charles Denton v Breakspear Nominees Pty Ltd

Details

AGLC: Michael David Charles Denton v Breakspear Nominees Pty Ltd [2020] FWC 780
Case: [2020] FWC 780
Decision Date: 28 FEBRUARY 2020

CaseChat Overview and Summary

The applicant, Michael David Charles Denton, applied to the Federal Circuit and Family Court of Australia for an unfair dismissal remedy against Breakspear Nominees Pty Ltd. Denton alleged that his dismissal was unfair under the Fair Work Act 2009. The primary issue was whether Denton's application for the remedy was filed within the requisite 21-day period and whether an extension of time to file the application should be granted.

The court examined whether Denton had exceptional circumstances warranting an extension of time to file his application. The court noted that Denton had not filed his application within the 21-day period and did not provide a satisfactory explanation for the delay. The court found that Denton's reasons for the delay did not constitute exceptional circumstances, as they did not meet the threshold required for an extension under the Fair Work Regulations 2009. The court emphasised that the absence of exceptional circumstances meant that Denton's application for an extension of time was not successful.

Consequently, the court dismissed Denton's application for an unfair dismissal remedy on the basis that it was not filed within the prescribed time frame and that an extension of time was not warranted. The court did not grant the extension of time sought by Denton, thereby upholding the statutory requirement for timely applications. The final orders of the court reflected the dismissal of the application for an unfair dismissal remedy due to the failure to file within the 21-day period and the denial of the extension of time.

Orders