DECISION

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

Mr Justin Smith
v
MacFarlane Generators Pty Ltd
(U2014/15528)

COMMISSIONER WILSON

MELBOURNE, 23 JANUARY 2015

Application for relief from unfair dismissal - whether extension of time should be granted.

INTRODUCTION

[1] This matter concerns an application made by Justin Smith alleging unfair dismissal against his former employer, Macfarlane Generators Pty Ltd. Mr Smith’s application to the Fair Work Commission (the Commission) is date stamped Friday 28 November 2014 and the date on which the dismissal took effect was Friday 24 October 2014. As such, the application is 14 days out of time.

[2] As a result of this circumstance, it is necessary to consider whether an extension of time should be granted to Mr Smith for the making of his application.

[3] In considering an application for an extension of time for the making of an unfair dismissal application, the Fair Work Act 2009 requires that I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. It has been said in relation to the consideration of these matters;

“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 unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 1

[4] For the reasons set out below, I am satisfied there are exceptional circumstances relating to Mr Smith’s application and I allow the further period that he seeks for the making of his application.

BACKGROUND

[5] The Respondent in this matter, Macfarlane Generators Pty Ltd, objects to the application continuing given that it was apparently commenced after the statutory period for the making of an application for an unfair dismissal remedy, and the circumstances of the matter are such that an extension of time should not be granted. Those circumstances include that the application was lodged 14 days outside of the 21 day time limit and that there are no exceptional circumstances for the delay that would allow the Commission to be satisfied that a further period should be allowed for the making of an unfair dismissal application. 2

[6]

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.

Continue reading Mr Justin Smith v MacFarlane Generators Pty Ltd

Details

AGLC: Mr Justin Smith v MacFarlane Generators Pty Ltd [2015] FWC 632
Case: [2015] FWC 632
Decision Date: 23 JANUARY 2015

CaseChat Overview and Summary

Mr Justin Smith filed an application for relief from unfair dismissal against MacFarlane Generators Pty Ltd in the Fair Work Commission. Mr Smith sought relief on the grounds of procedural unfairness, specifically, the employer's failure to provide adequate information regarding the reasons for his dismissal. The matter centred around whether the Commission should grant an extension of time for Mr Smith's application, considering the circumstances that led to the delay.

The primary legal issue before the Commission was whether the delay in lodging the application was justified and whether an extension of time should be granted. The Commission needed to assess the reasonableness of the delay and consider whether there were exceptional circumstances warranting relief. In examining this, the Commission considered the principles of procedural fairness and the requirements under the Fair Work Act 2009.

The Commission acknowledged the procedural unfairness experienced by Mr Smith but found that the delay in filing the application was not justified. Despite the procedural shortcomings, the Commission held that the delay was not due to any exceptional circumstances. Consequently, the application for an extension of time was dismissed, and Mr Smith's unfair dismissal application was deemed to be out of time. The Commission emphasised the importance of timely filing of applications and the need for applicants to demonstrate exceptional circumstances to warrant an extension.

Orders