Mr David Mikhail v Ingram Micro Pty Ltd T/A Ingram Micro - [2012] FWA 4314

[2012] FWA 4314

FAIR WORK AUSTRALIA

DECISION

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

Mr David Mikhail
v
Ingram Micro Pty Ltd T/A Ingram Micro
(U2012/3900)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 MAY 2012

Unfair dismissal - application filed two days ‘out of time’ - exceptional circumstances - Christmas / New Year period - merits of case - extension of time not granted - application dismissed.

[1] On 5 January 2012, Mr David Mikhail (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking an unfair dismissal remedy following his dismissal by Ingram Micro Pty Ltd t/a Ingram Micro (the ‘respondent’) on 20 December, 2011. As will be readily apparent, the application was filed 2 days outside the 14 day statutory time limitation as required by s 394(2) of the Act (see Acts Interpretation Act 1901, s 36).

[2] Subsequently, the applicant has requested that Fair Work Australia (FWA) exercise its discretion under s 394(3) of the Act by extending the time for the filing of his application by 2 days so as to allow his claim to proceed to a merits hearing.

[3] In a short submission, dated 6 March 2012, the applicant explained his reasons for not filing his application within time as follows:

‘The application for unfair dismissal...was submitted 1 day late due to the inability to seek legal advice during the festive season.

My legal advisor was closed during this season as were most legal firms and I managed to seek advice just the day before submission.

FWA has charged me for the submission therefore I understand it has been accepted’.

[4] At this juncture it is necessary to set out the statutory framework under which FWA is empowered to consider ‘out of time’ unfair dismissal applications. This is set out at s 394(3) of the Act as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

The essential element of the statutory instruction is for the Tribunal to be satisfied that ‘exceptional circumstances’ exist which would favour an extension of time being granted. I shall come back to the now well established authorities on the meaning of ‘exceptional circumstances’ in this context.

SUBMISSIONS

[5] The applicant did not address the statutory criteria in s 394(3) in any meaningful or detailed way. From the above written submission, his F2 application and subsequent oral submissions at the hearing, it may be concluded that the reasons…

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: [2012] FWA 4314
Decision Date: 23 MAY 2012

CaseChat Overview and Summary

Mr David Mikhail filed an application for unfair dismissal against Ingram Micro Pty Ltd, trading as Ingram Micro, in the Fair Work Commission. The central issue in the dispute was whether the application, filed two days beyond the statutory deadline, could be considered under the doctrine of ‘exceptional circumstances’. The late filing occurred during the Christmas and New Year holiday period, which Mr Mikhail argued contributed to the delay.

The legal question before the Commission was whether the delay in filing the application could be excused due to exceptional circumstances. The Commission examined whether the holiday period constituted an exceptional circumstance that warranted an extension of time. The respondent, Ingram Micro, contended that the holiday period did not justify the late filing and that the applicant had not demonstrated any unique or unforeseen difficulties that prevented timely submission.

The Commission held that while the holiday period might present some difficulties, it was not of such a nature to qualify as an exceptional circumstance under the applicable legislation. The Commission concluded that the applicant had not provided sufficient evidence to support a claim of exceptional circumstances. Consequently, the application to extend the time for filing the unfair dismissal application was dismissed. The Commission did not consider it appropriate to grant an extension in these circumstances, and the application was ultimately unsuccessful.

Orders