Mr Scott McDonald v Foamland - [2014] FWC 5607

[2014] FWC 5607

FAIR WORK COMMISSION

DECISION

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

Mr Scott McDonald
v
Foamland
(U2014/9852)

DEPUTY PRESIDENT WELLS

HOBART, 18 AUGUST 2014

Issued on Transcript

Application for relief from unfair dismissal – jurisdiction – whether application made within 21 days – where day of lodgement falls on a public holiday – Acts Interpretation Act - extension of time – application due on 22^nd day.

Introduction

[1] On Tuesday 10 June 2014, Mr Scott McDonald made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) regarding dismissal from his employment with Foamland.

[2] The date of dismissal is contentious with Mr McDonald stating it occurred on Monday 19 May 2014 and Foamland submitting it notified Mr McDonald of his dismissal on Friday 16 May 2014. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal as provided in s.394(2)(a).

[3] On 10 June 2014 the application for an unfair dismissal remedy under s.394 of the Act was made. Should the dismissal be found to have taken effect on 19 May 2014, the 21 day requirement would make the last lodgement date as Monday 9 June 2014. The application would then be one day out of time in respect of the requirement of s.394(2)(a) of the Act and it is relevant that Monday 9 June 2014 was the Queen’s Birthday public holiday.

[4] Should the dismissal of Mr McDonald be found to have taken place on 16 May 2014, the application would be some 4 days out of time and the existence of the public holiday on 9 June 2014 would have lesser relevance.

[5] Mr Indika Gunadasa of the Hobart Community Legal Service (HCLS) sought and was granted leave to appear for Mr McDonald on the basis that there were a broad range of issues to consider and having counsel present would enable the matter to be dealt with more effectively and efficiently; and that Mr McDonald would be unable to effectively represent himself.

[6] Pursuant to s.394(2)(b), the Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it 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.

The date of termination

[7] There was evidence and submissions filed in this matter which do not directly relate to the jurisdictional matter to be decided. Where this material provides context to the evidence or submissions to be considered as to jurisdiction, I have had regard for them.

[8] Mr McDonald’s evidence…

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: [2014] FWC 5607
Decision Date: 18 AUGUST 2014

CaseChat Overview and Summary

Mr Scott McDonald applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The application was made on 10 June 2014, one day after the 21-day statutory period had expired. The 21-day period expired on 9 June 2014, a public holiday. Foamland, Mr McDonald's employer, submitted that the application was out of time and the Commission had no jurisdiction to hear the matter. Mr McDonald contended the application was made within time. The Court was required to determine the date on which Mr McDonald's employment was terminated and whether the application was made within the statutory period. The Court found that Mr McDonald's employment was terminated on 19 May 2014, meaning the application was one day late. The Court was also required to determine whether the application could be accepted out of time, pursuant to section 394(2)(b) of the Fair Work Act 2009. The Court found that there were exceptional circumstances warranting an extension of time for the lodging of the application. The Court found that Mr McDonald was blameless for the delay and that his representative had provided him with incorrect advice. The Court accepted that this constituted exceptional circumstances warranting an extension of time. The Court allowed a further period within which Mr McDonald could lodge his application.

Orders