Smith v KJM Contractors Pty Ltd - [2010] FWA 5515

[2010] FWA 5515

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Christopher Robert Smith
v
KJM Contractors Pty Ltd
(U2010/5265)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 29 JULY 2010

Summary: reasons for decision in writing - whether Christmas period exceptional circumstances for delay in lodgement

[1] The application to which this decision refers was filed by Mr Christopher Robert Smith. He sought an unfair dismissal remedy (under s.394 of the Fair Work Act 2009 (“the FW Act”)) in relation to the termination of his employment by his former employer, KJM Contractors Pty Ltd (the Respondent”).

[2] This decision was initially given in transcript on 13 July 2010.

[3] The reasons for decision retained on transcript are now placed in writing. They are the same reasons given verbatim at the time of hearing but for the inclusion of these introductory comments, the relevant statutory provisions and some minor editing indicated by the use of parentheses, which are an aid to fluency.

[4] I have taken the step of putting the reasons in decision in writing because of the operation of s.601 of the Fair Work Act 2009, which I have read in conjunction with the Explanatory Memorandum to the FW Act, at Items 2309 -2312. Item 2310 of the Explanatory Memorandum states that “[i]t is expected that FWA will provide written reasons for all decisions of significance”.

[5] Out of caution, I now provide the written reasons for my decision as previously only provided in transcript and not otherwise published.

STATUTORY CONTEXT

[6] Section 394(2) and s.394(3) of the FW Act reads as follows:

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection(3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; 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.

FACTUAL MATRIX AND CONSIDERATION AS PROVIDED IN DECISION IN TRANSCRIPT

[7] “The application before me was lodged some eight days beyond the 14 day time period as specified under section 394(2) of the Fair Work Act. [...] It appears to me that the termination took effect on 17 December 2010.

[8] The period of time from 17 December to 31 December is 14 days.

[9] The application should have been made on 31 December, which is the end of the 14 day period.

[10] The application was not made until the eighth day of January.

[11] Section 394(2)(a) of the Act states that an…

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: [2010] FWA 5515
Decision Date: 29 JULY 2010

CaseChat Overview and Summary

In the case of Smith v KJM Contractors Pty Ltd, Mr Christopher Robert Smith sought an unfair dismissal remedy under section 394 of the Fair Work Act 2009, against his former employer, KJM Contractors Pty Ltd. The application was lodged eight days beyond the stipulated 14-day period, leading to the central issue of whether the delay could be excused due to exceptional circumstances. The decision was made by Senior Deputy President Richards in Brisbane on 29 July 2010, with reasons provided in writing as required by section 601 of the Fair Work Act.

The primary legal issue was whether the delay in lodging the application could be justified under section 394(3) of the Act, considering the various factors including the reason for the delay, the applicant's awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, merits of the application, and fairness to other similarly situated persons. Mr Smith was dismissed on 17 December 2009, and the application was lodged on 8 January 2010. The Christmas period was cited as a reason for the delay, but the Court found that the Christmas period, being a predictable and known event, did not constitute an unforeseen or unexpected circumstance that could excuse the delay.

The Court concluded that the applicant did not demonstrate sufficient self-agency in managing his application post-dismissal, particularly in failing to seek legal advice or understand the statutory timeframe for lodging an application. The Court also noted that the applicant's solicitor did not communicate the urgency of the timeframe, but this did not sufficiently excuse the overall delay. The Court found no exceptional circumstances warranting an extension of the application period, and thus dismissed the application.

Orders