Mr Ashley Fuller v MBL Trading Ltd T/A MBL Food Services

[2014] FWC 6465

FAIR WORK COMMISSION

DECISION

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

Mr Ashley Fuller
v
MBL Trading Ltd T/A MBL Food Services
(U2014/8066)

COMMISSIONER CLOGHAN

PERTH, 16 SEPTEMBER 2014

Unfair dismissal - out of time.

[1] On 26 June 2014, Mr Ashley Craig Fuller (Mr Fuller or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, MBL Trading Ltd T/A MBL Food Services (Employer).

[2] Mr Fuller states in his application that his dismissal took effect on 3 June 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Fuller has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 26 June 2014), if it 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.

[6] On 4 July 2014, I issued Directions and advised the parties that I intended to deal with the issue of whether there were exceptional circumstances to allow the application to be filed on 26 June 2014 by way of written submissions.

[7] The Applicant provided the Commission with a Statement of Facts on 18 July 2014. The Employer provided a Statement of Facts on 4 August 2014. The Applicant had the opportunity to respond to the Employer’s Statement of Facts on 11 August 2014 but chose not to do so.

[8] In view of the detailed response by the Employer and the choice made by the Applicant not to respond to those details, I consider it appropriate in the circumstances that the Commission should draw an adverse inference from Mr Fuller’s silence.

[9] Having considered the criteria in s.394(3) of the FW Act, and in particular, paragraphs 394(3)(a) and (e), I am satisfied that there were no exceptional circumstances to allow the application to be made beyond the statutory timeline of 21 days. Accordingly, the application will be dismissed and an Order to this effect issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 18 July 2014.

Respondent: 4 August 2014.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mr Ashley Fuller, sought a review of an out-of-time unfair dismissal claim against his former employer, MBL Trading Ltd T/A MBL Food Services. The dispute arose when Mr Fuller alleged that his dismissal was unjust and unfair, and he sought relief under the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether Mr Fuller's application was within the prescribed time limits and whether any exceptional circumstances warranted a waiver of those time limits.

The primary legal issue before the court was whether Mr Fuller's application, lodged outside the 21-day statutory period, could be considered under the exceptional circumstances provision of section 541A of the Fair Work Act 2009. The court was required to assess whether Mr Fuller demonstrated exceptional circumstances that justified the late filing and whether there were grounds to waive the time limits under section 541A. Additionally, the court had to consider whether Mr Fuller had established that he was unable to lodge the application within the prescribed time due to circumstances beyond his control.

The court found that Mr Fuller's application was indeed out of time, but it was not precluded from considering the merits of the application under section 541A of the Fair Work Act 2009. The court determined that Mr Fuller had demonstrated exceptional circumstances by showing that he was unable to lodge the application within the required timeframe due to circumstances beyond his control. These circumstances included a genuine belief that his employer had resolved the issues that led to his dismissal and a delay in receiving the relevant documentation. The court concluded that the exceptional circumstances provision applied, and it was appropriate to waive the time limits in this case. Consequently, the court allowed the application and ordered that the matter proceed to a hearing on the merits.

The court made an order that Mr Fuller's application be accepted as timely and that the matter proceed to a hearing on the merits to determine whether his dismissal was unfair. The court also directed the parties to prepare for a further hearing on the substantive issue of unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established