DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Moa Wakuk
v
JBS Australia Pty Ltd
(U2020/7493)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 19 JUNE 2020

Application for an unfair dismissal remedy – application filed 242 days out of time – circumstances not exceptional.

[1] This decision concerns an application by Mr Moa Wakuk for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).

[2] Mr Wakuk made an application for an unfair dismissal remedy under s.394 of the Act on 30 May 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Wakuk’s application was filed outside the timeframe for lodgement of the application. Mr Wakuk seeks that the Commission allow a further period of time for the application to be made.

[3] The Respondent opposes the grant of an extension of time. It says that Mr Wakuk resigned on 10 September 2019.

[4] For the reasons set out below, I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application. The application is dismissed.

When did the dismissal take effect?

[5] Mr Wakuk contends that it is not clear when his employment ended. Notwithstanding this, upon lodgment of the application Mr Wakuk accepted that it was not made within 21 days of the dismissal taking effect. 1

[6] During the proceedings Mr Wakuk said that his father, who had also been employed by the Respondent, advised him on or about 12 September 2019 that the Respondent considered that Mr Wakuk had abandoned his employment. However, Mr Wakuk contends that he did not abandon his employment. Rather, he says that he sought approval to finish his shift early following an exchange with his supervisor Mr Simon Bennett, and return to work the next day. 2 Mr Wakuk formed the view that his request was approved because he was presented with, and signed, what he understood to be a sign off sheet.3

[7] Mr Wakuk said that he did not present for work the next day on 11 September 2019, or thereafter. He contends that there was a downturn in work at this time, and he was waiting for a telephone call from the Respondent inviting him to return.

[8] On 30 May 2020, Mr Wakuk attended Sunshine Lawyers and met with his representative, Mr Monoah. Mr Wakuk submits that the Commission should regard 30 May 2020 as the effective date of dismissal, being the date that his representative advised him of the 21-day limitation period. 4

[9] The Respondent contends that on 10 September 2019 Mr Wakuk resigned from his employment. In support of its position the Respondent relies upon the following:

(a) An employee exit checklist dated 10 September 2019 and signed by Mr Wakuk which…

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 3161
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

The applicant, Moa Wakuk, filed an application seeking a remedy for an unfair dismissal against JBS Australia Pty Ltd. The dispute arose from the termination of Wakuk's employment by JBS. The case was heard in the Fair Work Commission. The primary issue before the Commission was whether Wakuk's application, filed 242 days after the dismissal, was within the allowable time frame, considering the circumstances were not exceptional.

The Fair Work Commission needed to determine if the delay in filing the application was justified under the circumstances. It considered the provisions of the Fair Work Act 2009, which stipulate strict time limits for filing unfair dismissal applications. The Commission assessed whether the delay was due to exceptional circumstances, which would warrant an extension of the time limit. In this case, Wakuk did not provide sufficient evidence to demonstrate that the delay was due to exceptional circumstances. Consequently, the Commission found that the delay was not justified.

The Fair Work Commission dismissed Wakuk's application for an unfair dismissal remedy, finding that the application was filed beyond the allowable time frame and the circumstances did not warrant an extension. The Commission held that the strict time limits for filing such applications must be adhered to unless there are exceptional circumstances, which were not present in this case. As a result, the application was denied.

Orders