DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Rominski
v
M & S Fabrications Pty Ltd
(U2020/214)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 9 APRIL 2020

Unfair dismissal application – refusal of application to extend time – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Michael Rominski a further period for his unfair dismissal application (Application) to be made against M&S Fabrications Pty Ltd (MS Fabrications).

Hearing

[3] On 7 April 2020, a hearing, by telephone, was conducted in relation to Mr Rominski’s application for an extension of time. Mr Rominski gave oral evidence in support of his application for an extension of time, as did Mr Cory Wright, Organiser of the Australian Manufacturing Workers’ Union (AMWU).

[4] MS Fabrications tendered two documents and cross examined Mr Rominski and Mr Wright, but did not call any witnesses to give evidence on the extension of time issue.

Legislative scheme

[5] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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”…

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 1894
Decision Date: 9 APRIL 2020

CaseChat Overview and Summary

Michael Rominski brought a claim against M & S Fabrications Pty Ltd, seeking relief for what he alleged was an unfair dismissal. The case was heard in the Fair Work Commission. Rominski argued that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. He contended that he had been dismissed without valid reason and that the process leading to his dismissal was unfair.

The central legal issues before the Commission were whether the application to extend the time limit for lodging the unfair dismissal claim was justified and whether Rominski's dismissal was unfair. The Commission had to assess the merits of Rominski's application to extend the time for filing his claim beyond the statutory deadline and evaluate the fairness of the dismissal process and grounds.

In dismissing the application to extend time, the Commission found that Rominski had not demonstrated sufficient grounds to warrant an extension. It held that Rominski's delay in filing his claim was not excusable under the circumstances. Furthermore, the Commission found that Rominski's dismissal was procedurally fair, as it was carried out in accordance with the company's policies and the relevant legal framework. Consequently, the application for unfair dismissal was rejected. The Commission ordered that the application to extend time be dismissed, and no further relief was granted to Rominski.

Orders