DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Stephen Nemeth
v
Sydney Trains
(C2020/7561)

DEPUTY PRESIDENT BULL

SYDNEY, 26 APRIL 2021

Application to deal with contraventions involving dismissal - whether application filed out of time - whether exceptional circumstances exist to extend time for filing.

[1] On 8 October 2020, Mr Stephen Nemeth filed with the Fair Work Commission a s.365 General Protections application involving dismissal. The application alleges multiple breaches of general protections law. 1 Mr Nemeth’s application states that his employer, Sydney Trains notified and dismissed him on 17 September 2020.

[2] Sydney Trains contends that the application should be dismissed as it has not been filed within the prescribed legislated timeframe, namely 21 days after the dismissal took effect and that there are no exceptional circumstances for the Commission to exercise its discretion to extend the time for filing.

[3] Mr Nemeth submits that his application was filed in time, and in the alternative, there exists exceptional circumstances due to representational error for the Commission to exercise its discretion to extend the time for filing.

[4] At the hearing of this matter, both parties were legally represented pursuant to leave being granted under s.596(2(a)) of the Act. Mr Nemeth and his solicitor Mr Michael Short provided written statements and gave evidence and were subject to cross-examination. For Sydney Trains, written statements and oral evidence were provided by Ms Kirsty McGeachie, Maintenance Operations Manager, and Ms Kothai Chandran, Team Leader for Transport NSW, both of whom were cross-examined on their evidence.

Was the application filed within the 21 day period?

[5] The timeframe for filing a s.365 application is set out at s.366(1) of the Fair Work Act 2009 (the Act):

“366 TIME FOR APPLICATION

366 (1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[6] Mr Nemeth, in submitting that his application was filed within the prescribed timeframe, contends that he was not notified of his dismissal until 17 September 2020, when he received correspondence to that effect. The correspondence was dated 20 August 2020 and had not been forwarded to Mr Nemeth at around this date due to an administrative error.

[7] Sydney Trains submits that the applicant has lodged his application either nine or two days outside the prescribed timeframe. This is because on 8 September 2020, he received his final pay including all accrued entitlements which are paid out on termination made it clear that he had been dismissed from his employment and thus needed to file his application by 29 September 2020, which was nine days before his application was actually filed.

[8] Further, on 15 September 2020, Mr Nemeth acknowledges that he received a Separation Pack which contained a Certificate of Service and final payslip also making it clear that he had been terminated from his employment.…

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 2186
Decision Date: 26 APRIL 2021

CaseChat Overview and Summary

The applicant, Mr Stephen Nemeth, sought to have the Federal Court review the decision of Sydney Trains to terminate his employment. The dispute centred on whether the application was filed out of the permissible time, and if there were exceptional circumstances warranting an extension. This case was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were the timeliness of Mr Nemeth's application and the existence of any exceptional circumstances that would justify extending the time limit. The court examined whether the application was lodged within the stipulated period and if there were any factors that could be considered exceptional to warrant a late filing.

The court found that the application was indeed filed outside the allowable timeframe. However, it acknowledged that exceptional circumstances might warrant an extension. After a thorough review, the court determined that the circumstances presented by Mr Nemeth did not meet the threshold for being considered exceptional. Consequently, the application was dismissed for being out of time.

The court did not find it necessary to extend the time for filing, and thus no further orders were made. The decision was final, with no additional provisions or considerations mentioned.

Orders