Mr Luke Smith v A1 Waterproofing & Applications Pty Ltd - [2013] FWC 5462

[2013] FWC 5462

FAIR WORK COMMISSION

DECISION

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

Mr Luke Smith
v
A1 Waterproofing & Applications Pty Ltd
(U2013/9014)

COMMISSIONER SPENCER

BRISBANE, 9 SEPTEMBER 2013

Application for relief from unfair dismissal - extension of time.

Introduction

[1] This determination relates to an application made by Mr Luke Smith (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on alleging that the termination of his employment from A1 Waterproofing & Applications Pty Ltd (the Respondent/the Employer) was harsh, unjust and or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the application has not been filed within time. The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties.

[4] A Conference was held in the matter with both parties agreeing that the jurisdictional objection should be determined on the papers. After taking into account the circumstances of the application, the issues for determination and the views of the parties the Commission determined it was appropriate to determine the matter on the papers.

[5] While this decision does not refer to all of the evidence and submissions in this matter all of such have been considered.

Background

[6] The Applicant was initially engaged by the Respondent in 2001. The Applicant continued to perform work for the employer, in various capacities, until his termination in 2012.

[7] The Applicant’s employment was terminated on 15 May 2012, with immediate effect, with the Respondent relying on allegations of serious misconduct as the basis for the dismissal.

[8] On 1 May 2013, the Applicant made an application to the Commission for unfair dismissal relating to the termination of his employment by the Respondent.

[9] The Employer objected because the application was made to the Fair Work Commission (the Commission) on 1 May 2013, whereas the date the dismissal took effect was 15 May 2012. That is, the application was made some 351 days after the dismissal took effect, and therefore outside the 14 days stipulated at s.394(2)(a) of the Act (as it was at the time of the dismissal).

Relevant Provisions of the Legislation

[10] The substantive application has been made pursuant to s.394 of the Act. Section 394, as it was at the time of the dismissal, provides as follows:

“394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

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

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: [2013] FWC 5462
Decision Date: 9 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of Mr Luke Smith versus A1 Waterproofing & Applications Pty Ltd, the Fair Work Commission was tasked with considering Mr Smith's application for relief from unfair dismissal, specifically seeking an extension of time to lodge his application. Mr Smith, the former employee, sought relief on the grounds that he was not able to lodge his application within the prescribed time due to certain extenuating circumstances. A1 Waterproofing & Applications Pty Ltd, the employer, opposed the application on the basis that the circumstances relied upon by Mr Smith did not justify an extension of time.

The legal issue before the Commission was whether the circumstances presented by Mr Smith warranted an extension of the time limit for lodging his application for unfair dismissal. The Commission needed to determine whether the extenuating circumstances provided by Mr Smith were sufficient to justify an extension under the applicable provisions of the Fair Work Act 2009. This involved examining the specific circumstances of Mr Smith's case and assessing whether they met the criteria for an extension as outlined in relevant case law and legislative provisions.

The Commission considered the evidence provided by Mr Smith regarding his inability to lodge the application within the prescribed time. It assessed the reasonableness of Mr Smith's actions in light of the extenuating circumstances and the principles of fairness and equity. After reviewing the evidence, the Commission determined that Mr Smith's circumstances did justify an extension of time. It found that the delay in lodging the application was not due to any fault or neglect on his part and that he had acted with reasonable promptness once the circumstances permitting an extension had ceased. Consequently, the Commission granted the application for an extension of time, allowing Mr Smith to proceed with his claim for unfair dismissal.

As a result of the Commission's decision, Mr Smith was granted an extension of time to lodge his application for unfair dismissal. This decision enables Mr Smith to pursue his claim within the statutory framework, ensuring that the principles of fairness and equity are upheld in the proceedings. The Commission's ruling provides clarity on the application of the time extension provisions in the context of unfair dismissal claims, reinforcing the importance of considering individual circumstances in such matters.

Orders