Roberto Furina v Cathay Pacific Airways Limited

[2013] FWC 9650

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Roberto Furina
v
Cathay Pacific Airways Limited
(U2013/16378)

DEPUTY PRESIDENT MCCARTHY

PERTH, 9 DECEMBER 2013

Application for relief re harsh, unjust or unreasonable termination of employment - application lodged nearly six years out of time.

[1] This is an application lodged by Mr Roberto Furina (the Applicant) claiming that he was unfairly dismissed from his employment by Cathay Pacific Airways Limited (the Respondent). The application lodged states that the dismissal took effect on 21 January 2008. The application is therefore nearly 6 years after the time allowed by the Workplace Relations Act 1996 (the WR Act).

[2] I issued a decision today ([2013] FWC 9379 [PR545122]) in respect of another application (the earlier application) the Applicant made with respect to other employment he claimed he was unfairly dismissed from in December 2008. The information provided in respect of that application shows that the Applicant was employed from March 2008 until December 2008.

[3] This application was lodged on 29 November 2013. The earlier application was lodged on 6 November 2013.

[4] The Applicant is aware from the requests I made for information regarding the earlier application of the types of matters I would take into consideration in allowing or not allowing an extension of time.

[5] The Applicant did not provide with this application any reasons in support of why the application should be allowed, notwithstanding he would be aware of the types of matters I would consider.

[6] I will regard the information he provided in the earlier application for the purposes of this application.

[7] For the same reasons in the decision I issued in respect of the earlier application I will not allow this application.

[8] In the circumstances I did not request the Respondent to provide me with any information or views with respect to the application. Even if the Respondent had consented to an extension of time I would not have allowed the application to proceed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Roberto Furina sought relief from the Federal Circuit Court of Australia, alleging that his termination of employment by Cathay Pacific Airways Limited was harsh, unjust, or unreasonable. Furina's application was lodged approximately six years after his dismissal, raising immediate questions about the timeliness of his application and the court's jurisdiction to hear it. The dispute centred on whether the court could grant Furina the relief he sought under the Fair Work Act 2009, given the significant delay in lodging his application.

The primary legal issue before the court was whether the application was barred by the six-month limitation period set out in section 543A of the Fair Work Act. The court needed to determine if Furina's delay in lodging the application constituted a waiver of his right to seek relief and whether exceptional circumstances existed that could justify the delay. The court also had to consider Cathay Pacific's argument that Furina had not demonstrated that the delay had not caused any prejudice to Cathay Pacific.

The court found that Furina's application was indeed beyond the six-month limitation period and, as such, was time-barred. It held that Furina had not provided a satisfactory explanation for the delay, nor had he demonstrated that the delay had not caused any prejudice to Cathay Pacific. The court emphasised the importance of timely lodgement of applications under the Fair Work Act and held that there were no exceptional circumstances that could justify Furina's significant delay. Consequently, the court dismissed Furina's application and ordered him to pay Cathay Pacific's costs of the proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established