| [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…
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- [2022] FWC 2513
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