DECISION

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

Mr John Robertson
v
Red Energy
(U2015/1586)

COMMISSIONER WILSON

MELBOURNE, 5 JUNE 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application. Application refused.

[1] This matter concerns an application made by John Robertson alleging unfair dismissal from employment by his former employer, Red Energy Pty Ltd. Mr Robertson’s application was first received in the Fair Work Commission on 8 April 2015. The document itself is dated 7 April 2015. Mr Robertson’s application discloses that date upon which his dismissal took effect is 12 March 2015.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 6 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr Robertson for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed to Mr Robertson for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application, taking into account the criteria specified within s.394(3). The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Red Energy, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Robertson, the Applicant. Formal evidence was not received from representatives of Red Energy.

[7] The circumstances revealed by this material and which are relevant to this decision include that Mr Robertson was first employed on 27 August 2015 in the capacity of Customer Solutions Consultant at Red Energy’s Richmond, Victoria site. During his period of employment, Mr Robertson received several warnings relating to the procedures he should follow in reporting unplanned absences to the company.

[8] In particular, the issue was that there had been, according to the company, circumstances in which Mr Robertson had failed to properly advise that he would not be attending…

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: [2015] FWC 3831
Decision Date: 5 JUNE 2015

CaseChat Overview and Summary

Mr John Robertson brought an application for unfair dismissal against Red Energy. Mr Robertson claimed that he was dismissed without just cause or excuse, and that the dismissal was harsh, unjust, or unreasonable. The application was filed beyond the statutory time limit, and Red Energy objected to the extension of time. The Fair Work Commission was the tribunal that considered the application.

The primary legal issue before the tribunal was whether the delay in lodging the application was justified, and whether an extension of time should be granted. The tribunal had to consider the principles set out in the Fair Work Act 2009 and relevant case law to determine whether Mr Robertson had a valid reason for the delay and whether it was in the interests of justice to grant the extension.

The tribunal found that Mr Robertson had not demonstrated any exceptional circumstances that would justify the delay in filing the application. While Mr Robertson argued that he had been misled by Red Energy, the tribunal held that this did not constitute a valid reason for the delay. The tribunal also found that granting an extension would not be in the interests of justice, as it would undermine the statutory time limit for making such applications. Consequently, the application for an extension of time was refused.

As a result of the tribunal's decision, Mr Robertson's application for unfair dismissal was dismissed, and he was not granted leave to extend the time for filing the application.

Orders