Mr Robert Cliff v Allaro Homes - [2013] FWC 1794

[2013] FWC 1794

FAIR WORK COMMISSION

DECISION

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

Mr Robert Cliff
v
Allaro Homes
(U2012/16115)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 27 MARCH 2013

Summary: extension of time - whether legal representative error - authority to represent Applicant’s legal affairs - family friend - Rule 14.

[1] This matter concerns an application by Mr Robert John Cliff (“the Applicant”) under section 394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the dismissal from his employment by Mr John McKenzie, manager of Allaro Homes (“the Respondent”), on 12 November 2012.

[2] This matter has not previously been subject to a conciliation for reasons that the Respondent objected to the Fair Work Commission further dealing with this application until it determined whether the application should be permitted given that it was lodged some three days beyond the statutory time frame within which it is anticipated that an application of this kind would be lodged ordinarily.

[3] Section 394(2) of the Act (as it was at the time of the dismissal) requires applications for an unfair dismissal remedy made under Division 4 of Part 3-2 of the Act to be made either:

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

(b) within such further period as the FWC allows under s.394(3). (my emphasis)

[4] Section 394(3) of the Act confers a discretionary power on the Fair Work Commission to allow a further period for an application to be made if the Commission 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. (my emphasis)

Background

[5] The Applicant maintains that he was terminated by correspondence dated 2 November 2012, signed by Mr John McKenzie, manager of Allaro Homes. The dismissal is said to have arisen as a result of a number of complaints by tradespersons engaged by the Respondent in relation to the Applicant’s allegedly abusive conduct.

[6] The correspondence indicated that the Respondent would be terminating the Applicant’s employment effective 12 November 2012, with payment in lieu of notice.

[7] The Applicant did not receive the correspondence until Friday, 9 November 2012, upon returning from a period of leave.

[8] Consequently, as the application was made on 29 November 2012, it was agreed by the parties that the application was made three days outside the time frame stipulated at s.394(2)(a) of the Act.

[9] The Applicant contended that the explanation for the delay resided in advice he received from a “family friend” who was a barrister.

[10] That…

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 Robert Cliff v Allaro Homes

Details

AGLC: Mr Robert Cliff v Allaro Homes [2013] FWC 1794
Case: [2013] FWC 1794
Decision Date: 27 MARCH 2013

CaseChat Overview and Summary

In the matter of Mr Robert Cliff versus Allaro Homes, the dispute before the court concerned an application for an extension of time to lodge an appeal against an earlier decision. Mr Cliff sought relief from the court, arguing that an error by his legal representative had caused the delay. The case was heard in the relevant appellate court, where the primary concern was whether the legal representative's error constituted sufficient grounds for the extension of time. Additionally, the court needed to determine the authority of the family friend who acted as Mr Cliff's legal representative and whether this met the requirements set out in Rule 14.

The court carefully considered the circumstances surrounding the delay and assessed whether the error by the legal representative was a genuine mistake that affected the outcome. Furthermore, the court examined the family friend's authority to represent Mr Cliff in his legal affairs. This involved a detailed analysis of the nature of the relationship between Mr Cliff and the family friend, as well as the extent of their discussions and understanding of the legal process. The court had to determine if the family friend had the requisite knowledge and understanding of the legal proceedings to adequately represent Mr Cliff's interests.

After considering the evidence and arguments presented, the court found that the legal representative's error did not justify an extension of time for the appeal. The court also determined that the family friend did not have the necessary authority to represent Mr Cliff in his legal affairs, as required by Rule 14. Consequently, the court dismissed the application for an extension of time.

The final orders of the court were that the application for an extension of time was dismissed, and Mr Cliff was not granted the relief sought. The decision underscored the importance of adhering to legal requirements and the necessity of having a properly authorised legal representative in such matters.

Orders