DECISION

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

Mr Joshua Du Boulay
v
Kimberley Individual & Family Support Association Inc T/A KIFSA
(U2014/12921)

COMMISSIONER CLOGHAN

PERTH, 6 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] On 30 September 2014, Mr Joshua Du Boulay (Mr Du Boulay or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Kimberley Individual & Family Support Association Inc T/A KIFSA (Employer).

[2] The application was made pursuant to s.394 of the Fair work Act (FW Act).

[3] The Employer raised the jurisdictional objection that the application was not filed in the Commission within the statutory timeline.

[4] Conciliation did not proceed and the application was referred to me for arbitration on 31 October 2014.

[5] On 5 November 2014, I issued Directions to address the Employer’s jurisdictional objection. At the conclusion of the Directions, in bolding, are the words:

“The Applicant and Employer must comply with these directions.”

[6] In addition, the Directions state:

“Should the Applicant not provide any submission pursuant to paragraph [7], the application will be dismissed for want of prosecution.”

[7] The Applicant was required to file and serve his submission in accordance with the Directions by 21 November 2014. The Applicant did not comply with the direction.

[8] The Applicant has not communicated with the Commission as to why he has been unable to comply with the Commission’s Directions in relation to his application.

[9] Accordingly, the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the FW Act. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Mr Joshua Du Boulay versus Kimberley Individual & Family Support Association Inc trading as KIFSA, the Fair Work Commission was presented with an application for relief from unfair dismissal. The primary dispute centred on the procedural fairness of the dismissal and whether the applicant, Mr Du Boulay, had been treated justly by his employer, KIFSA, in the termination of his employment.

The legal issues before the Commission encompassed whether the application was within the jurisdictional limits of the Commission, particularly considering the timeliness of the filing. The Commission had to determine if Mr Du Boulay's application was lodged within the prescribed period as stipulated by the Fair Work Act 2009, and if not, whether any exceptional circumstances justified a waiver of the time limitation. Furthermore, the Commission needed to assess whether the application contained sufficient evidence to establish a prima facie case of unfair dismissal.

The Fair Work Commission found that the application was indeed out of time, having been filed beyond the statutory 21-day period from the date of dismissal. However, the Commission considered whether the applicant's delay in lodging the application could be excused under the principles of equity or due to exceptional circumstances. Upon reviewing the circumstances, the Commission concluded that no exceptional circumstances were present that would warrant an extension of the time limit. Consequently, the application was dismissed on the grounds of being out of time, and no further consideration of the merits of the unfair dismissal claim was made.

Mr Joshua Du Boulay v Kimberley Individual & Family Support Association Inc T/A KIFSA

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established