Ryan Serman v Burson Auto Parts Pty Ltd - [2022] FWC 2513

[2022] FWC 2513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ryan Serman
v

Burson Auto Parts Pty Ltd

(U2022/7924)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 SEPTEMBER 2022

Application for an unfair dismissal remedy

Mr Serman applied for an unfair dismissal remedy having been dismissed from Burson Auto Parts Pty Ltd (the Respondent) on 30 June 2022. He lodged his unfair dismissal application with the Commission on 2 August 2022, some 12 days outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside of time. This decision deals with that objection.

Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

It is not contested that Mr Serman’s application was made out of time. However, for Mr Serman’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a)   the reason for the delay; and
(b)   whether the person first became aware of the dismissal after it had taken effect; and
(c)   any action taken by the person to dispute the dismissal; and
(d)   prejudice to the employer (including prejudice caused by the delay); and
(e)   the merits of the application; and
(f)    fairness as between the person and other persons in a similar position.[1]

The issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted. The parties requested that the matter be determined on the papers. Having considered the views of the parties, the materials filed, and the requirement that the Commission perform its functions in a matter that is quick, informal, fair and just, I considered that this was the appropriate course.

Mr Serman advanced several reasons why I should find that there are exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.

Background

Mr Serman commenced work as the Store Manager of the Respondent in August 2020.[2] In June 2021, Mr Serman is said to have signed a renewal of his employment contract that provided for use of a company vehicle. The use of such vehicle extended to private use.

Mr Serman states that on 25…

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: [2022] FWC 2513
Decision Date: 30 SEPTEMBER 2022

CaseChat Overview and Summary

Ryan Serman brought an unfair dismissal application against Burson Auto Parts Pty Ltd to the Fair Work Commission. Mr Serman was dismissed on 30 June 2022 and lodged his application on 2 August 2022, 12 days outside the 21-day statutory time limit under s 394(2) of the Fair Work Act 2009 (Cth). The Respondent objected to the application on the basis that it was filed outside the statutory time limit. The issues before the Deputy President were whether there were exceptional circumstances that warranted an extension of time to lodge the application, and whether it was fair and equitable to grant such an extension. The Deputy President found that Mr Serman had not provided a satisfactory explanation for the delay, and there were no exceptional circumstances warranting an extension of time. The application for an extension of time was therefore refused, the jurisdictional objection was upheld, and the substantive application for an unfair dismissal remedy was dismissed. The Deputy President noted that the absence of objective evidence regarding Mr Serman's purported mental health condition and its effects on his cognitive capacity, as well as his failure to take any action to dispute his dismissal during the statutory time frame, weighed against a finding that there were exceptional circumstances. The Deputy President also found that it would not be fair and equitable to grant an extension of time. An order will be issued with the decision.

Orders