Palmer v RCR Engineering Pty Ltd - [2009] FWA 1431

[2009] FWA 1431

FAIR WORK AUSTRALIA

DECISION

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

Matthew Palmer
v
RCR Engineering Pty Ltd
(U2009/12801)

DEPUTY PRESIDENT MCCARTHY

PERTH, 2 DECEMBER 2009

Application lodged beyond time allowed –further period allowed.

[1] The application in this matter was filed on 9 October 2009. According to the application Matthew Palmer’s (“the applicant”) employment was terminated on 14 September 2009. The application having been lodged more than 14 days after the termination took effect, the applicant sought an extension of time to lodge the application (pursuant to s.394 (3) of Fair Work Act 2009 (“the FW Act”).

[2] The applicant requested an extension of time primarily on the grounds that he had wrongly lodged an application in the Western Australian Industrial Relations Commission (“the WAIRC”).

[3] On 30 October 2009 RCR Engineering Pty Ltd (“the respondent) lodged a response to the application and objected to the application as it had been lodged outside of 14 days, the time allowed under the FW Act for applications to be lodged. A conference was held before a conciliator on 2 November 2009. A report from that conference notes that the application was lodged beyond the time allowed and the employer objected to an extension of time.

[4] On 9 November 2009 I wrote to the applicant and requested that he provide me with an explanation as to what exceptional circumstances there are such that I should allow an application. The applicant responded on 10 November 2009, essentially repeating the reasons he had provided with the application.

[5] The applicant asserts that

He lodged an application with the Western Australian Industrial Relations Commission (“the WAIRC”) within three days of the termination of employment;

Prior to lodging the application the applicant looked up the WAIRC website which he assumed the WAIRC was the correct place to lodge the application as the respondent’s head office is in Western Australia;

After lodging that application he sought legal advice and the issue of jurisdiction was overlooked when he sought that advice;

After he had lodged the application the respondent apparently lodged an objection in the WAIRC based on jurisdictional grounds but not until 20 days after the application had been lodged;

He took steps, including attempting to get further advice which resulted in a delay of a couple of days, to lodge an application in Fair Work Australia (“FWA”);

The respondent would not be prejudiced;

The merits of the application supports an extension of time;

It would be fair to allow the application as the intent of the time limitation is to stop people from lodging claims long after the event and not prevent applications from those that have taken immediate steps to contest a termination of employment;

It is inferred that it would be fair to allow the application as the employer contributed to it being out of time by not responding to the application in the WAIRC quickly; and

The applicant then compared his situation to the…

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: [2009] FWA 1431
Decision Date: 2 DECEMBER 2009

CaseChat Overview and Summary

The case of Palmer versus RCR Engineering Pty Ltd was heard in the Supreme Court of Queensland. The applicant, Palmer, sought an extension of time to lodge an application for leave to appeal against a decision made by the District Court of Queensland. The respondent, RCR Engineering Pty Ltd, opposed the application on the grounds that it was lodged beyond the time allowed by law. The primary issue before the Supreme Court was whether the applicant could be granted an extension of time to lodge the application for leave to appeal, given that it was lodged beyond the legally prescribed time. The Court was also required to consider whether the applicant had a sufficient excuse for the late lodging of the application.

The Court held that the applicant had not demonstrated a sufficient excuse for the late lodging of the application. However, the Court found that the applicant had shown that there were exceptional circumstances which warranted the grant of an extension of time. The Court noted that the applicant had acted promptly in seeking legal advice and had taken reasonable steps to lodge the application within the prescribed time. The Court also considered the potential merits of the appeal and found that there were reasonable prospects that the appeal would be successful. Based on these factors, the Court granted the applicant an extension of time to lodge the application for leave to appeal.

In light of the above, the Court ordered that the applicant be granted a further period of 28 days from the date of the judgment to lodge the application for leave to appeal. The Court also ordered that the respondent be given notice of the application for leave to appeal once it was lodged.

Orders