REASONS FOR DECISION

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

Michelle Collins
v
Cyndan Chemicals
(U2015/2291)

DEPUTY PRESIDENT SAMS

SYDNEY, 5 FEBRUARY 2015

Application for relief from unfair dismissal - whether ‘genuine redundancy’ - application made ‘out of time’ - no ‘exceptional circumstances’- prospects of success negligible - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Michelle Joy Collins (the ‘applicant’) was purportedly made redundant from her employment with Cyndan Chemicals (the ‘respondent’) on 18 December 2014. The applicant lodged an application for unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 13 January 2015. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. Her application was therefore lodged at least 4 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal lodged by the applicant. The Commission wrote to the applicant on 16 January 2015 outlining the matters I am required to consider under s 394(3) of the Act, and asked her to provide a statement addressing these matters within 14 days. The applicant provided, by way of email, a statement of one page. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 23 January 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in…

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.

Keep reading for free

Create a free CaseChat account to read Michelle Collins v Cyndan Chemicals and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FWC 859
Decision Date: 5 FEBRUARY 2015

CaseChat Overview and Summary

Michelle Collins lodged an application for relief from her dismissal against Cyndan Chemicals, which she claimed was unfair. The primary issue was whether her dismissal was a genuine redundancy. Additionally, the application was made after the prescribed period, raising concerns about its timeliness. The court had to decide whether the application was made out of time and, if so, whether there were exceptional circumstances to justify the delay. The court also needed to assess the prospects of success of the application on its merits.

In examining the matter, the court considered whether the dismissal met the criteria for a genuine redundancy. It was established that the dismissal was part of a reduction in force due to financial difficulties at Cyndan Chemicals. However, the court found that the application was lodged beyond the statutory timeframe, and no exceptional circumstances were present to excuse the delay. Furthermore, the court evaluated the likelihood of success on the merits of the application. Given the circumstances, the court concluded that the prospects of success were negligible.

Based on its reasoning, the court dismissed the application for relief from unfair dismissal. The decision was grounded in the absence of exceptional circumstances to justify the late filing and the minimal likelihood of success on the merits. The court's ruling was unequivocal, stating that the application did not meet the necessary criteria for relief. Consequently, the court dismissed the application in its entirety.

Orders