DECISION

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

Mr Daryl Ashton
v
Qube Bulk Pty Ltd
(U2016/10555)

COMMISSIONER PLATT

ADELAIDE, 21 OCTOBER 2016

Application for unfair dismissal remedy - jurisdiction - application for extension of time for lodgment - whether representative error - whether exceptional circumstances - extension of time not granted.

[1] Mr Ashton lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Qube Bulk Pty Ltd (Qube).

[2] The application was lodged on behalf of Mr Ashton by Mr de Zwart, of DeLancey Legal.

[3] That application advised that Mr Ashton’s dismissal took effect on 27 June 2016 and provided the following reason for the late lodgement:

“1.4.1 The Applicant filed through his former lawyer an application for the Commission to deal with a 'dispute' under s.739 on 13 July 2016. That was well within 21days of the date of his dismissal on 27 June 2016. By that application the Applicant sought to take issue with his dismissal as a 'dispute'. Pursuant to advice of his former lawyer, the Applicant framed the application as either a 'dispute' arising under an enterprise agreement pursuant to s.738(b), or else as a 'dispute' arising under any written agreement concerning National Employment Standards or a safety net contractual entitlement pursuant to s.738(c). That application was misconceived because neither enlivened the Commission's jurisdiction in the circumstances. The Commission listed that application for a conference on 27 July 2016. [See Annexure A]

1.4.2 The Applicant lives in Port Hedland. Within a week or so, the Applicant instructed new solicitors, Delancey Legal. Delancey has a regional office in the Pilbara, but is headquartered in Melbourne, with its Principal regularly travelling between Melbourne and the Pilbara. Delancey Legal promptly made enquiries for a Western Australian counsel. By Monday 15 August 2016 a suitable WA counsel had been identified and briefed with outline materials. Mandatory costs agreements had been executed by Friday 19 August 2016.

1.4.3 The Applicant is now in his 60s. If the Commission refuses to entertain his out-of-time application for unfair dismissal, pursuant to which the Applicant seeks an order for reinstatement, it may be challenging for the Applicant to obtain subsequent employment. That is particularly so given that the Applicant has worked continuously, but for 2 years between July 2011 and July 2013, for the Respondent since 19 March 2004.

[4] On 14 September 2016, Deputy President Gooley corresponded with both Mr Ashton and Qube and advised that the extension of time issue would be considered through a telephone conference on 29 September 2016. Substantial information about the extension of time issue was provided to the parties. Mr Ashton was directed to provide an outline of argument, statements and a document list by 21 September 2016. Qube was required to submit documents in reply by 28 September 2016.

[5] The matter was subsequently allocated to me to conduct the…

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 Mr Daryl Ashton v Qube Bulk Pty Ltd 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: [2016] FWC 7668
Decision Date: 21 OCTOBER 2016

CaseChat Overview and Summary

Mr Daryl Ashton applied to the Federal Circuit and Family Court of Australia for an unfair dismissal remedy against Qube Bulk Pty Ltd. Mr Ashton alleged that his dismissal was unfair and sought compensation. Qube Bulk contested the application on multiple grounds, including that the application was filed beyond the statutory time limit. Mr Ashton sought an extension of time on the basis of alleged representative error and exceptional circumstances. The court was required to determine whether it had the jurisdiction to consider the application for an extension of time and, if so, whether the application should be granted.

The court held that it had jurisdiction to consider the application for an extension of time. It examined the grounds for the extension, focusing on the alleged representative error and exceptional circumstances. The court found that the representative error did not sufficiently excuse the delay in lodging the application. Additionally, the court held that the circumstances presented did not constitute exceptional circumstances warranting an extension of time. The court concluded that the application for an extension of time should be dismissed.

As a result of the court's decision, the application for an unfair dismissal remedy was not considered on its merits due to the failure to lodge the application within the statutory time limit. The court did not grant the extension of time, and the application for unfair dismissal was dismissed without further consideration.

Orders