Mr Enrique Aquino v Hypostyle Pty Ltd - [2024] FWC 2790

[2024] FWC 2790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Enrique Aquino
v

Hypostyle Pty Ltd

(U2024/7952)

DEPUTY PRESIDENT BOYCE

SYDNEY, 9 OCTOBER 2024

Application for an unfair dismissal remedy – application filed 19 days outside of 21 day time limit – no exceptional circumstances – application dismissed.

Introduction

On 9 July 2024, Mr Enrique Aquino (Applicant) filed an unfair dismissal application (Application) under s.394 of the Fair Work Act 2009 (Act), alleging that he was unfairly dismissed by Hypostyle Pty Ltd (Respondent).

Section 394(3) of the Act provides that an application made under s.394 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]

In its Form F3 (Response), filed on 30 July 2024, the Respondent says that the Applicant’s dismissal was a case of “genuine redundancy” (within the meaning of s.389 of the Act), and otherwise denies that the Applicant’s dismissal was unfair. In reply, the Applicant says that his dismissal was unfair, including because it was for reasons of age-based discrimination, and was not a case of genuine redundancy.

The Applicant was advised of his dismissal on 8 May 2024, and it took effect on 31 May 2024. Given that the dismissal took effect on 31 May 2024, the Applicant should have filed his application on or by 21 June 2024. The Application has thus been filed 19 days outside of (or beyond) the 21-day time limit under s.394(2)(a) of the Act.

On 4 September 2024, Directions were issued to the parties programming (for hearing) the Applicant’s request for an extension of time. Both parties ultimately complied with those Directions. At the hearing conducted on 24 September 2024, Applicant appeared for himself, assisted by Ms Hazel Reindflesh, his daughter, and Mr Johnny Reindflesh, his son-in-law. Mr Ryan Solomon, Managing Director of the Respondent Company, and Ms Eleanora Solomon, appeared for the Respondent.

Legal Principles

Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some…

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: [2024] FWC 2790
Decision Date: 9 OCTOBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, Mr Enrique Aquino sought an unfair dismissal remedy against Hypostyle Pty Ltd, contending that his dismissal was unfair and not a genuine redundancy. The application was filed 19 days beyond the statutory 21-day limit. The primary issue was whether the Commission should grant an extension of time for filing the application, considering the existence of "exceptional circumstances." The legal principles guiding the assessment of "exceptional circumstances" require that the circumstances be out of the ordinary, unusual, or special, and not routinely encountered. The Deputy President considered various criteria including the reason for delay, the merits of the application, and prejudice to the employer.

The Applicant's reason for delay was based on a perceived misrepresentation by the Respondent about the closure of its business. However, the Deputy President found the Applicant's explanation for the delay neither credible nor reasonable. Additionally, the Applicant had not taken any action to dispute the dismissal prior to filing the application, and the merits of the unfair dismissal claim were deemed weak. The absence of prejudice to the employer due to the delay was also considered a neutral factor. Evaluating all these criteria, the Deputy President concluded that there were no exceptional circumstances warranting an extension of time.

Based on the analysis, the Deputy President dismissed the application for an extension of time. Consequently, the application for an unfair dismissal remedy was also dismissed. The decision highlighted that the statutory time limit for filing such applications is strictly enforced and exceptions are rarely granted, especially when the reasons for delay are not substantiated.

Orders