REASONS FOR DECISION

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

Mr Michael Mawson
v
Taipan Pty Ltd
(U2020/13435)

DEPUTY PRESIDENT ASBURY

BRISBANE, 22 MARCH 2021

Application for an unfair dismissal remedy – Application filed outside time required in s.394(2) – Medical evidence – Exceptional circumstances established – Further period to make application granted.

Introduction

[1] Mr Michael Mawson (the Applicant) applied under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by Taipan Pty Ltd (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that his employment was terminated on 20 April 2020 and that the termination took effect on that date. There is no dispute from the Respondent as to the date of termination and its effect.

[2] The application was filed with the Commission on 9 October 2020. By virtue of s.394(2) of the FW Act, an application under s.394 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). On the basis that the employment relationship was terminated on 20 April 2020, the application was required to be made by midnight on 11 May 2020. The application was made 151 days outside the time required in s.394(2) of the FW Act.

[3] On 22 October 2020, correspondence was sent to the Applicant from the Chambers of Vice President Catanzariti seeking that the Applicant provide reasons as to why an extension should be granted having regard to the matters in s.394(3) of the FW Act, and for the Respondent to file a Form F3 – Employer Response to the application. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted. The Directions indicated that in the absence of any request for a hearing, the application for an extension of time would be determined on the papers. Both parties have advised the Commission that they agree to that course.

[4] While it appears that there is likely to be a dispute in relation to facts should the matter proceed to arbitration on the merits, the facts as are relevant to the extension of time are not in dispute. None of the witnesses were required for cross-examination. I did not consider it necessary to hold a hearing 1 and decided to determine the extension of time issue on the papers. The parties filed a significant amount of material including numerous reply submissions. I have had regard to all of the material filed.

[5] The Applicant seeks permission to be represented by Ms Sharifah Al-Edrus of Susan Moriarty & Associates. The Respondent seeks permission to be represented by Mr Paul Everingham of Everingham Lawyers. To the extent it is required, given that I have not conducted…

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: [2021] FWC 639
Decision Date: 22 MARCH 2021

CaseChat Overview and Summary

In the case of Mr Michael Mawson v Taipan Pty Ltd, Mr Mawson sought relief for an unfair dismissal, which was filed outside the time required under section 394(2). The dispute arose from Mr Mawson's dismissal by Taipan Pty Ltd, and the application for remedy was lodged beyond the statutory period. The court was required to consider whether the application could be accepted despite the procedural default due to the exceptional circumstances presented by Mr Mawson.

The primary legal issue before the court was whether the application for an unfair dismissal remedy could be entertained despite being filed outside the stipulated timeframe. Mr Mawson argued that exceptional circumstances warranted an extension of time, which was supported by medical evidence indicating that he was unable to lodge the application within the prescribed period due to a medical condition. The court needed to determine the sufficiency and relevance of the medical evidence and whether it constituted exceptional circumstances that justified the extension.

The court found that the medical evidence provided by Mr Mawson was credible and demonstrated that he had been genuinely unable to file the application within the required timeframe due to his medical condition. The court recognised the exceptional nature of his circumstances and granted the application for an extension of time to file the unfair dismissal remedy. Consequently, the application was accepted, and the matter was allowed to proceed despite the procedural default.

The court's decision allowed Mr Mawson's application for an unfair dismissal remedy to proceed, despite being filed outside the statutory time limit. The exceptional circumstances, as evidenced by his medical condition, justified the extension. The court's ruling ensured that Mr Mawson's right to seek a remedy for his unfair dismissal was not unduly prejudiced by procedural delays.

Orders