DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Michael Harvey
v
Compass-Group (Australia) Pty Ltd
(U2021/1387)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 17 MARCH 2021

Application for an unfair dismissal remedy – extension of time – calculation error – discretionary considerations – no exceptional circumstances – application dismissed

[1] On 19 February 2021 Michael Harvey (Mr Harvey) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Compass-Group (Australia) Pty Ltd (Compass Group or the Employer) which took effect on 28 January 2021.

[2] Mr Harvey’ application was made twenty-two days after the dismissal took effect, being one day beyond the statutory time-limit. Mr Harvey provided the following explanation: 1

“I read on the Fair Work Commission web site that the employee must make an unfair dismissal application to the Commission within 21 days of the dismissal taking effect. It was my understanding that the 21 days started the day after the dismissal. From this date 29 January 2021, I counted three whole weeks and came to the conclusion that the end of the 21 day duration landed on Friday 19 February 2021.”

[3] The matter was allocated to me to determine whether an extension of time should be granted. This decision deals only with that issue.

[4] I issued Directions on 23 February 2021. Information about an extension of time and factors the Commission is required to take into account were provided to the parties.

[5] Mr Harvey and Compass Group filed materials in advance of the hearing.

[6] I heard the matter by telephone on 12 March 2021. Both parties were self-represented. Mr Harvey’s legal practitioner attended as a support person and adviser or advocate if needed. I considered this a form of representation requiring permission 2. Permission was then requested, not opposed, and granted.

[7] Mr Harvey gave sworn evidence on his witness statement. 3

[8] There are no material factual disputes.

[9] Following the hearing I reserved my decision.

Facts

Mr Harvey’s employment

[10] Amongst other undertakings, Compass Group is contracted to provide services to mining operators and employs persons for those purposes. One such services contract is at a mine at McArthur River in north-eastern Northern Territory operated by McArthur River Mining, a subsidiary of the Glencore group (the Client).

[11] Mr Harvey lives in Adelaide, South Australia. He worked in various roles, under separate employment contracts, for the Compass Group since 5 March 2013.

[12] The subject of these proceedings concerns Mr Harvey’s employment as Site Administrator at the McArthur River Mine. He was promoted to that role in 2019 and commenced work under an employment contract on 2 December 2019. 4

[13] McArthur River Mining withdrew Mr Harvey’s site access for alleged cause from 24 December 2020.

[14] Mr Harvey had a few days’ notice of the Client’s decision. He was spoken to on 21 December 2020, at…

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: [2021] FWC 1375
Decision Date: 17 MARCH 2021

CaseChat Overview and Summary

Michael Harvey, an employee of Compass-Group (Australia) Pty Ltd, applied for an unfair dismissal remedy. The dispute arose after Compass-Group terminated his employment, and Harvey contended that the dismissal was unfair. The Fair Work Commission (FWC) was tasked with examining the application and whether an extension of time was warranted due to a calculation error in the original application.

The legal issues before the FWC included whether the calculation error constituted an exceptional circumstance justifying an extension of time for lodging the application and whether the application should be dismissed due to the absence of exceptional circumstances. The FWC had to consider the principles of fairness and equity in the context of procedural fairness and the timeliness of the application.

The FWC found that while the calculation error was a genuine mistake, it did not constitute an exceptional circumstance warranting an extension of time. The FWC noted that the application was lodged 13 days late, and there was no evidence that the delay was due to any fault on Harvey's part. The FWC concluded that the failure to meet the strict timelines was not excused by the calculation error, and therefore, the application was dismissed. The FWC emphasised the importance of strict adherence to procedural requirements in unfair dismissal cases.

Orders