DECISION

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

Mr Daniel Schiavello
v
Decon Industries Pty Ltd
(U2021/1872)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 APRIL 2021

Application for unfair dismissal remedy – application filed 10 days out of time – circumstances exceptional – extension of time granted.

[1] On 5 March 2021 Mr Daniel Schiavello made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Schiavello’s unfair dismissal application is Decon Industries Pty Ltd (Decon Industries).

[2] Mr Schiavello had commenced employment with Decon Industries as an apprentice electrician on 18 July 2018. On 18 January 2021, at which time he was a third-year apprentice, Mr Schiavello was informed that his position was redundant and that his employment would be terminated effective 2 February 2021. This was confirmed in writing by letter dated 19 January 2021.

[3] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Schiavello recorded that the unfair dismissal application was not made within 21 calendar days of his dismissal taking effect. As s.394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3), this file was allocated to me for the purposes of determining whether an extension of time for the making of Mr Schiavello’s application should be granted. Mr Schiavello’s unfair dismissal application made on 5 March 2021 was filed 10 days late.

[4] Mr Schiavello and Decon Industries filed material in response to the Directions I made on 10 March 2021 and I subsequently conducted a Determinative Conference on 6 April 2021 to consider his application for an extension of time for the filing of his unfair dismissal application. Mr Schiavello appeared and gave oral evidence. He was assisted by his wife, Ms Kaitlyn Schiavello. Ms Catherine Faul (Chief Financial Officer) and Mr Robert Facchini (National Construction Manager) appeared on behalf of Decon Industries. They also gave evidence, along with Mr Mohamad Tawfik (General Manager for RG Ladd Pty Ltd).

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of…

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: [2021] FWC 1855
Decision Date: 7 APRIL 2021

CaseChat Overview and Summary

The applicant, Mr Daniel Schiavello, filed an application for unfair dismissal remedy against Decon Industries Pty Ltd in the Fair Work Commission. The dispute arose from Mr Schiavello's termination of employment by Decon Industries, which he claims was unfair. The application was filed 10 days beyond the statutory time limit for such applications, raising a preliminary issue regarding the timeliness of the filing. The Commission was required to determine whether the late filing could be excused under the circumstances and whether the application should proceed to the merits of the unfair dismissal claim.

The key legal issue before the Commission was whether the delay in filing the application was so exceptional as to warrant an extension of time under the Fair Work Act. Mr Schiavello argued that the delay was due to his unavailability to attend to the matter personally because of a serious medical condition and the need to rely on his legal representative. Decon Industries contended that the delay was inexcusable and that the application should be dismissed outright. The Commission considered the principles of procedural fairness and the circumstances of the delay, weighing the potential prejudice to Decon Industries against Mr Schiavello's explanation for the late filing.

The Commission found that Mr Schiavello's circumstances were exceptional and justified an extension of time. The medical condition and the necessity to rely on a legal representative due to his unavailability constituted exceptional circumstances that warranted relief from the strict time constraints. The Commission emphasised that while the late filing was not ideal, the potential prejudice to Decon Industries was minimal, given the short delay and the absence of any suggestion that Decon Industries had been misled or disadvantaged by the delay. Consequently, the Commission granted the extension of time and allowed the application to proceed to its merits. The final orders included the grant of an extension of time for the filing of the application and the direction that the matter proceed to a hearing on the merits of the unfair dismissal claim.

Orders