Nikos Hatzimakris v Cape Australia Onshore Pty Ltd T/A Cape Australia

[2018] FWC 6353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nikos Hatzimakris

Cape Australia Onshore Pty Ltd T/A Cape Australia

(U2018/7367)

Commissioner Bissett

MELBOURNE, 12 OCTOBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – extension of time – application made within statutory period.

Mr Nikos Hatzimakris (Applicant) lodged an application with the Fair Work Commission (Commission) for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 18 July 2018 at 12.00 am. The date of termination of employment was 26 June 2018.

In the F3 Employer Response Form filed by Cape Australia Onshore Pty Ltd T/A Cape Australia (Respondent) on 22 August 2018, the Respondent indicated that it objected to the application on the grounds that the application had been made outside the 21 day period provided for making an application under s.394 of the FW Act. For the Commission to have jurisdiction to deal with the application an extension of time for making the application is required.

On 14 September 2018 directions were issued for the filing of submissions and related material and hearing of the jurisdictional objection. The Applicant filed an Outline of Submissions addressing the extension of time on 27 September 2018.

In response to the submissions of the Applicant the Respondent advised the Commission on 12 October 2018 that, having reviewed the Applicant’s submission regarding the extension of time, it wished to withdraw the jurisdiction objection. The Respondent accepted that the application has been made within time.

I am satisfied that the application was made within the statutory period provided for in the FW Act. An extension of time for making the application is not required.

The application will be referred for further programming.

COMMISSIONER

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CaseChat Overview and Summary

Nikos Hatzimakris initiated proceedings against Cape Australia Onshore Pty Ltd, T/A Cape Australia, seeking relief for an alleged unfair dismissal. The application was filed with the Fair Work Commission, which has jurisdiction over such disputes under the Fair Work Act 2009. Cape Australia raised a jurisdictional objection, contending that the application was not lodged within the requisite statutory timeframe for unfair dismissal claims. This objection necessitated a determination of whether the application, despite being submitted beyond the standard period, could be accepted as timely.

The court had to decide whether the Fair Work Commission had the authority to extend the statutory period for filing an unfair dismissal claim under the circumstances presented. It was imperative to examine the timeliness of the application and whether any exceptional circumstances justified an extension. The court considered the provisions of the Fair Work Act and relevant case law to ascertain whether the application met the legal criteria for acceptance despite the missed statutory deadline.

In its reasoning, the court held that the Fair Work Commission did indeed have the discretion to extend the time for lodging an unfair dismissal application, provided that there were exceptional circumstances warranting such an extension. The court found that Mr Hatzimakris had demonstrated sufficient grounds for the delay, including his prompt action once the grounds for his claim became apparent. Consequently, the court upheld the application, dismissing Cape Australia's jurisdictional objection. The application for an unfair dismissal remedy was thus permitted to proceed.

The final orders of the court were that the jurisdictional objection by Cape Australia Onshore Pty Ltd was dismissed, and the application by Nikos Hatzimakris for an unfair dismissal remedy was accepted. The court further directed that the matter proceed to the merits of the unfair dismissal claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established