DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Bennett
v
Allied Metals
(U2015/17103)

DEPUTY PRESIDENT BINET

PERTH, 7 APRIL 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application – extension of time not granted.

Introduction

[1] On 24 December 2015 Mr Stephen Bennett (Mr Bennett) filed an application (Application) pursuant to subsection 394(1) of the Fair Work Act 2009 (FW Act) claiming he was unfairly dismissed by Allied Metal Recyclers Pty Ltd (Allied Metal).

[2] Allied Metals have objected to the Fair Work Commission (Commission) exercising its jurisdiction to deal with the Application because it was lodged more than the 21 days after the dismissal took effect. Accordingly the jurisdictional objection was allocated to me for hearing and determination.

[3] On 15 January 2016 Mr Bennett filed an outline of argument and a statement of evidence on his own behalf. On 22 January 2016 Mr Bennett filed a second outline of argument, another statement of evidence on his own behalf and a statement of evidence from his partner. In summary Mr Bennett claimed that the lodgement of his application was delayed because he initially unsuccessfully sought to contest his dismissal directly with his employer and did not become aware that he could make an application to the Commission, until he was advised to do so by an employee of Centrelink.

[4] Allied Metals filed a Form F3 – Employer Response to Unfair Dismissal Application, , a Respondent Outline of Argument - Objections and a witness statement by Mr Craig Brotherson (Mr Brotherson) the company accountant. At a later date an Outline of Respondents Submissions on leave to represent and jurisdictional objection was lodged by Heldsinger Legal. In summary Allied Metals submitted that Mr Bennett had failed to provide sufficient reasons and supporting evidence to demonstrate that exceptional circumstances existed which would justify an extension of the lodgement time.

The Jurisdictional Hearing

[5] A jurisdictional hearing was conducted on 4 April 2016. At the hearing Mr Bennett represented himself. Mr David Heldsinger of counsel sought leave pursuant to subsection 596(2) to represent Allied Metals based on written submissions filed and served prior to the hearing. Mr Bennett did not object to the grant of leave. Based on the submissions and the authorities contained therein leave was granted.

[6] Mr Bennett and Mr Brotherson gave evidence. Both were cross examined.

Relevant Statutory Provisions

[7] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation…

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.

Continue reading Stephen Bennett v Allied Metals

Details

AGLC: Stephen Bennett v Allied Metals [2016] FWC 2092
Case: [2016] FWC 2092
Decision Date: 7 APRIL 2016

CaseChat Overview and Summary

The case of Stephen Bennett v Allied Metals involves an application for relief from an unfair dismissal. The applicant, Stephen Bennett, sought to extend the time in which he could lodge his application for relief, beyond the 21-day statutory period. The court was required to determine whether the extension of time should be granted under the Fair Work Act 2009. The respondent, Allied Metals, opposed the extension on the basis that the applicant had not demonstrated any substantial or compelling reason warranting an extension of time.

The court considered the criteria for extending the time limit, focusing on whether the applicant had acted with due diligence in lodging his application. The court examined the circumstances that led to the delay, including whether the applicant had any control over the delay and whether there was any evidence of exceptional circumstances. The court also took into account the impact of the delay on the respondent's ability to respond to the application. After weighing these factors, the court found that the applicant had not provided sufficient justification for the delay and, consequently, the extension of time was not granted.

The court's decision was based on the principle that the statutory time limit for lodging an application for relief from unfair dismissal is a strict requirement, designed to ensure timely resolution of disputes. The court held that the applicant's reasons for the delay were not compelling enough to warrant an extension. The court emphasised the importance of adherence to the statutory time frame and the potential unfairness to the respondent if the time limit were to be extended without sufficient justification. Ultimately, the court ruled that the application for an extension of time was unsuccessful.

As a result of the court's decision, the applicant's application for relief from unfair dismissal was dismissed due to the failure to lodge it within the statutory time limit. The court did not grant the extension of time sought by the applicant, and the application was therefore denied on procedural grounds.

Orders