REASONS FOR DECISION

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

Mr Paul Noble
v
Hanson Construction Materials Pty Ltd
(U2014/5154)

DEPUTY PRESIDENT ASBURY

BRISBANE, 30 JANUARY 2015

Application for relief from unfair dismissal - extension of time - extension not granted - application dismissed

Introduction and factual background

[1] Mr Paul Noble (Applicant) applies for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by Hanson Construction Materials Pty Ltd (Respondent). The Applicant states in his F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 20 December 2013 and that it took effect on that date. The reason for dismissal submitted by the Applicant was that the Respondent was of the view that he was permanently incapable of recovering to the point of resuming normal driving duties, after the Applicant had injured his back. The application was made on 3 March 2014 and I issued an order dismissing the application on 28 August 2014 in PR554849. These are my reasons for doing so.

[2] By virtue of s. 394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 394(3). The Applicant’s application was made fifty-two days outside the time required in s. 394(2). It is necessary to determine whether a further period should be allowed under s. 394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of…

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 358
Decision Date: 30 JANUARY 2015

CaseChat Overview and Summary

The case of Mr Paul Noble versus Hanson Construction Materials Pty Ltd involved an application for relief from unfair dismissal. Mr Noble sought relief from the dismissal on the grounds that it was unfair and unjust. The application was made in the Fair Work Commission, the industrial relations tribunal with jurisdiction over such disputes. The company contested the application on various grounds, including the assertion that Mr Noble had not met the statutory requirement to apply within 21 days of the dismissal.

The primary legal issues before the tribunal were whether the dismissal was indeed unfair and unjust, and whether the application was lodged within the requisite timeframe. The tribunal also had to consider whether there were exceptional circumstances warranting an extension of the statutory time limit for lodging the application. These issues required careful analysis of the relevant statutory provisions, the circumstances of the dismissal, and the reasons for the delay in lodging the application.

The tribunal concluded that the dismissal was not unfair or unjust, as it was based on genuine performance-related reasons. It further determined that Mr Noble had not provided sufficient grounds for an extension of the time limit for lodging the application. The tribunal found that the reasons provided for the delay were not exceptional and did not warrant an extension of the statutory time limit. Consequently, the tribunal dismissed the application for relief from unfair dismissal and refused to grant an extension of time for lodging the application. The dismissal of the application was upheld, and no relief was granted to Mr Noble.

Orders