Simon Ward v GrainCorp Operations Limited - [2022] FWC 2716

[2022] FWC 2716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Simon Ward
v

GrainCorp Operations Limited

(U2022/8270)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 12 OCTOBER 2022

Application for an unfair dismissal remedy – extension of time – representative error – filing in wrong jurisdiction followed by public holiday – whether exceptional circumstances – discretionary considerations – extension granted

On 11 August 2022 Simon Ward (Mr Ward or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) concerning the termination of his employment by Grain Corp Operations Limited (Grain Corp or the respondent) on 20 July 2022.

The application was lodged twenty-two days after his dismissal took effect, being one day beyond the statutory time limit. Mr Ward says late lodgement was the result of representative error by his legal representatives.

This decision deals with whether an extension of time should be granted.

I issued directions on 20 September 2022.

I conducted a hearing by video on 7 October 2022.

Permission was granted for Mr Ward to be represented on the extension of time issue.

Though there appear to be disputed facts on the merits, no disputed facts exist on the extension of time issue.

Statements from Mr Ward[1] and Mr Michael Wood (Managing Partner, Edgar & Wood Solicitors)[2] were filed, as well as written submissions. I took oral evidence from both. Neither were cross-examined.

Facts

Grain Corp operates in the agribusiness industry in Australia and internationally.

Mr Ward was employed as an Area Manager in Queensland. On 20 July 2022 he was dismissed for cause with four weeks’ notice paid in lieu.[3]

Mr Ward’s dismissal followed a period of suspension with pay after allegations were advised by letters of 13 June 2022 and 13 July 2022 and responses by Mr Ward on 15 June 2022, 15 July 2022 and 20 July 2022.[4]

In the course of responding to Grain Corp, Mr Ward engaged solicitors, Edgar & Wood.[5]

Mr Ward continued to obtain legal advice following dismissal.

On 29 July 2022 (nine days after dismissal) Mr Ward instructed his solicitors to file unfair dismissal proceedings seeking reinstatement. Mr Ward was aware that proceedings needed to be filed within 21 days of dismissal, though relied on advice from his solicitors as to the appropriate forum to litigate his action.

On 3 August 2022 Mr Ward’s solicitors recommended that counsel be briefed. Mr Travers of counsel was duly engaged.

On or around 3 August 2022 counsel advised Mr Ward’s solicitors that proceedings should be commenced in the Queensland Industrial Relations Commission (QIRC). This advice was conveyed to Mr Ward, who instructed his solicitors to proceed.

Between 3 and 9 August 2022 Mr Ward’s legal advisers prepared an Application for Reinstatement which was dated 9 August 2022 and lodged by Edgar & Wood in the QIRC at 4.24pm that day.[6] An immediate automated email response confirming lodgement was received by the solicitors.[7]

In filing on that day, Edgar & Wood were aware that…

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 2716
Decision Date: 12 OCTOBER 2022

CaseChat Overview and Summary

Simon Ward sought an unfair dismissal remedy against GrainCorp Operations Limited, the company that terminated his employment. Mr Ward's dismissal was effective on 20 July 2022, and his application for unfair dismissal was lodged with the Fair Work Commission on 11 August 2022, which was one day beyond the statutory 21-day limit. The central issue before the court was whether exceptional circumstances justified an extension of the time limit for filing the unfair dismissal application.

The court considered the factors outlined in section 394(3) of the Fair Work Act 2009. Mr Ward argued that the delay was due to a representative error by his legal representatives, compounded by a public holiday that fell on the 21st day after his dismissal. Mr Ward contended that he was blameless for the error and promptly acted to rectify it once he became aware of the mistake. The court found that Mr Ward had provided a credible explanation for the delay, and that he had acted diligently in addressing the error. Additionally, the fact that the error would likely have been rectified on time but for the public holiday further supported the argument for an extension. The court also noted that there was no significant prejudice to GrainCorp as a result of the delay.

The court concluded that the circumstances were exceptional, warranting an extension of time for the filing of the unfair dismissal application. The Deputy President granted the extension, allowing the application to proceed. The application was then directed to be conciliated by a staff conciliator.

Orders