Moses Maffescioni v G Bishops Transport Services Pty Ltd

[2020] FWC 2329

[2020] FWC 2329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Moses Maffescioni
v
G Bishops Transport Services Pty Ltd
(U2020/3663)

COMMISSIONER WILLIAMS PERTH, 8 MAY 2020

Application for an unfair dismissal remedy - extension of time.

[1] Mr Moses Maffescioni (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is the G Bishops Transport Services Pty Ltd.

Background

[2] The parties agree the dismissal took effect on 27 February 2020.

[3] The application was signed by the Applicant on 25 March 2020.

[4] The application was filed in the Fair Work Commission (the Commission) on 26 March 2020.

[5] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[6] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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

(c) any action taken by the person to dispute the dismissal; 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.”

[7] Consequently, on 21 April 2020 I wrote to the Applicant explaining to him the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[8] On 1 May 2020 the Applicant provided a written response to the Commission’s direction. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The reason for the delay

[9] The only reason for the delay provided by the Applicant was that he was acting on 21 business days rather than calendar days.

[10] The Commission has repeatedly held that being unaware of the legal requirements in the legislation or having a mistaken belief about these is not an acceptable reason for making an application after the required time has passed.

[11] Furthermore, the unfair dismissal application form F2 the Applicant completed specifically states, on its covering instructions:

“Lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect…” (emphasis in original)

[12] Considering the Applicant’s reason for the delay in making his application this does not constitute an exceptional circumstance nor in my view is it an acceptable reason for the delay.

Awareness of the date of dismissal

[13] The Applicant was made aware of his dismissal on the day it took effect.

Any action taken by the person to dispute the dismissal

[14] There is no evidence that the Applicant took any action to dispute his dismissal other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[15] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[16] The Applicant in his response to the request for further information raised a number of matters in relation to the merits of his unfair dismissal application.

[17] It is only at a hearing of a matter such as this would it become clear whether or not the application has merit. The Commission does not embark upon a hearing of the merit when determining the preliminary issue of an application to extend time for filing the substantive application.

[18] Consequently, I view the merits of the application as a neutral factor in this decision.

Fairness as between the person and other persons in a similar position

[19] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[20] The onus is on the Applicant to provide evidence and submissions to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[21] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[22] An order [PR718797] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 1 May 2020

Printed by authority of the Commonwealth Government Printer

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