Sione Fa v Direct Freight Express

[2024] FWC 3333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sione Fa
v

Direct Freight Express

(U2024/12484)

DEPUTY PRESIDENT DEAN

CANBERRA, 2 DECEMBER 2024

Application for an unfair dismissal remedy – extension of time not granted.

This decision concerns an application made by Mr Sione Fa (Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy involving his alleged dismissal from Direct Freight Express (Respondent).

Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The application in the present matter was filed five days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.

The application was listed for hearing on 2 December 2024 to determine the extension of time issue. For the reasons given in transcript at the conclusion of the hearing, I am not satisfied that there are exceptional circumstances warranting an extension of time. Accordingly, the application for an unfair dismissal remedy is dismissed.

An order giving effect to this decision is separately issued.

DEPUTY PRESIDENT

Appearances:

S Fa on his own behalf.
S Tomic for Direct Freight Express.

Hearing details:
2024.
By telephone:
December 2.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by Mr Sione Fa, who claimed he was unfairly dismissed by Direct Freight Express. The matter was filed five days beyond the statutory 21-day period allowed for such applications under section 394(2) of the Fair Work Act 2009. The Commission was required to determine whether exceptional circumstances existed to warrant an extension of this time limit, as permitted by section 394(3) of the Act. The hearing took place on 2 December 2024, and Deputy President Dean was tasked with deciding if the late filing could be excused.

In considering the application for an extension of time, the Deputy President examined the circumstances surrounding the late filing and whether they constituted exceptional circumstances. The Act does not define "exceptional circumstances," leaving it to the Commission to determine on a case-by-case basis what might constitute such circumstances. Mr Fa argued that certain factors justified an extension, but the Deputy President was not convinced by the evidence presented. The reasons for the decision, detailed in the transcript, indicated that the late filing did not meet the threshold for exceptional circumstances.

Following the hearing, Deputy President Dean concluded that the application for an unfair dismissal remedy could not proceed because the extension of time was not granted. The application was dismissed on the basis that no exceptional circumstances were demonstrated. This decision underscores the importance of adhering to statutory time limits in filing applications for unfair dismissal remedies, unless compelling reasons justify an extension. The Deputy President's decision was final and an order was issued to give effect to this outcome.

CaseChat Overview and Summary

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