DECISION

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

Michael Watson
v
Jims Mowing T/A Jims Mowing
(U2020/14369)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 DECEMBER 2020

Application for an unfair dismissal remedy - extension of time – alleged latent awareness of dismissal – length of delay - no exceptional circumstances - application dismissed

[1] On 3 November 2020 Michael Watson (Mr Watson or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by a Jim’s Mowing franchise (Jim’s Mowing Munno Para West) operated in Adelaide by Michael and Kristen Hill (Jim’s Mowing, the Respondent or the Employer).

[2] Mr Watson worked for Mr and Mrs Hill from around 20 January 2019 until 13 November 2019 as a casual gardener landscaper. It appears to be uncontested that he was dismissed on 13 November 2019, though the evidence in that regard is less clear.

[3] What is not in doubt is that Mr Watson’s application was filed well outside the statutory 21-day time limit. It is 334 days out of time. He seeks an extension of time. The Employer opposes that course.

[4] On 10 November 2020 the Respondent lodged a formal response opposing the application.

[5] In addition to relying on the out of time issue, the Employer’s response raised a second jurisdictional issue – that Mr Watson had not allegedly met the minimum employment period. The Respondent says that it was, at the relevant time, a small business and that Mr Watson had not worked for a minimum of twelve months prior to making the claim.

[6] The Commission issued directions on 17 November 2020. 1

[7] I did not receive material as directed or in a timely manner from Mr Watson. After communicating with the Commission by email on 10 November 2020, Mr Watson was then non-responsive for the following four weeks despite numerous emails and follow-up telephone calls by Commission staff. On 7 December 2020, three days before the scheduled hearing, the Employer made a strike-out application under section 399A of the FW Act. At 6.48am on the morning of the hearing, the Commission received a statement from Mr Watson on which he relied.

[8] I heard the matter by phone on 10 December 2020. Both parties were self-represented.

[9] Though the Employer pressed its section 399A application, in the exercise of my discretion (and for reasons given on the record) I adjourned the Employer’s strike-out application and dealt substantively with the out of time issue. I did not deal with the minimum employment period issue as it appears Mr Watson seeks to argue that as a franchisee, the Employer should include in the employee count not only its employees but employees of the broader Jim’s Mowing Group. Only if an extension of time were granted would that matter need be determined. In the interests of efficiency, I adjourned 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.

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Details

Case: [2020] FWC 6713
Decision Date: 16 DECEMBER 2020

CaseChat Overview and Summary

The case involved Michael Watson, the applicant, who sought an unfair dismissal remedy against Jims Mowing, the respondent. Watson alleged that his dismissal was unfair and sought a remedy for the same. The matter was heard in the Fair Work Commission, Australia. The central dispute was whether the Commission had the power to grant an extension of time for the filing of an unfair dismissal application, given the applicant's alleged latent awareness of the dismissal and the significant delay in filing the application.

The court needed to determine whether the applicant's claim, filed outside the 21-day statutory period, could be accepted as timely. This hinged on whether the applicant had latent awareness of the dismissal, which would have triggered the commencement of the 21-day period for filing the application. Additionally, the court had to consider whether there were any exceptional circumstances justifying the delay in filing the application. The court's analysis involved a detailed examination of the evidence provided by both parties and an assessment of the relevant legal principles.

The Fair Work Commission found that the applicant did not have latent awareness of the dismissal until well after the 21-day period had expired, and thus the application was filed outside the statutory period. The Commission also found that there were no exceptional circumstances to justify the delay. Given the significant delay and the absence of exceptional circumstances, the application for an extension of time was dismissed. The decision underscored the importance of timely filing of unfair dismissal applications and the strict enforcement of the statutory time limits.

No further orders were made beyond the dismissal of the application for an extension of time.

Orders