DECISION

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

Nathan Ninyette
v
BGC Contracting Pty Ltd
(U2017/59)

COMMISSIONER WILSON

MELBOURNE, 2 MAY 2017

Application for an unfair dismissal remedy - extension of time for lodgement of application.

[1] This matter concerns an application made by Nathan Ninyette alleging unfair dismissal against his former employer, BGC Contracting Pty Ltd. Mr Ninyette’s application was received in the Fair Work Commission on Wednesday, 4 January 2017, however the document itself is dated 28 December 2016. Mr Ninyette’s application discloses that the date upon which his dismissal took effect was 12 December 2016.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 1 day out of time, after allowing for the need to extend the period by one day to take account of the 21^st day after dismissal taking effect being a public holiday.

[3] The matter was also the subject of an application by the Respondent for the substantive application to be dismissed pursuant to s.399A of the Act, which permits the Commission to dismiss applications upon application by a respondent employer for the reason that, amongst other things, an applicant has unreasonably failed to comply with a direction of the Commission relating to their application. In this particular matter, after a conciliation could not take place because of his failure to attend, the matter was listed for determination of the question of an extension of time and Mr Ninyette was directed to file submissions and other material pertaining to that question. When he did not do so by the specified date, 22 February 2017, BGC Contracting sought dismissal of Mr Ninyette’s application. After inquiring into the circumstances of the matter, and taking into account a response received from Mr Ninyette, I determined that I could not be satisfied that he had unreasonably failed to comply with the Commission’s directions to file material. In particular, it became evident as a result of his response that the Commission’s Directions had been sent to an incorrect email address which omitted a digit from the address, albeit an inaccuracy contained on the original application form submitted by Mr Ninyette. Since I could not be satisfied that Mr Ninyette was aware of the Directions I determined the application under s.399A should be dismissed.

[4] As a result, the matter proceeded to a hearing by me to determine the matter of whether an extension of time should be granted to Mr Ninyette for the making of his application.

[5] In this decision, I have considered whether an extension of time should be granted to Mr Ninyette and, for the reasons set out below, I am satisfied that a further period should be allowed for the making…

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: [2017] FWC 2381
Decision Date: 2 MAY 2017

CaseChat Overview and Summary

The applicant, Nathan Ninyette, brought an application against BGC Contracting Pty Ltd seeking an unfair dismissal remedy. The dispute arose from the termination of Ninyette's employment by BGC Contracting. The application was initially lodged beyond the statutory time limit for such applications, and therefore, the central issue before the court was whether the application should be accepted outside the prescribed time period.

The court was tasked with determining whether the delay in lodging the application was excusable and whether the applicant had a valid reason for the late filing. The court considered the principles established in previous cases regarding extensions of time for unfair dismissal applications and the factors that might justify such an extension. The applicant argued that the delay was due to circumstances beyond his control and that he had acted promptly once he became aware of the grounds for his application.

In reaching its decision, the court noted the importance of timely applications in maintaining the integrity of the dispute resolution process. However, it also recognised that exceptional circumstances could warrant an extension of time. The court found that Ninyette had provided sufficient evidence to support his claim of excusable delay, primarily due to his lack of legal representation and understanding of the procedural requirements at the time of his dismissal. Consequently, the court granted the application for an extension of time, allowing Ninyette to proceed with his unfair dismissal remedy application.

The court ordered that the application for an unfair dismissal remedy be accepted despite the late filing, and that the respondent, BGC Contracting, be given an opportunity to respond to the substantive claims. The court also directed that the proceedings be expedited to ensure a timely resolution of the matter.

Orders