[2016] FWC 221

The attached document, replaces the document previously issued with the above code on 13 January 2016.

To correct error in endnote 10.

Basel Houchar

Associate to Commissioner Johns

Dated 18 January 2016

[2016] FWC 221

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Steven Spencer
v
UAM T/A Spotless
(U2015/13567)

COMMISSIONER JOHNS

MELBOURNE, 13 JANUARY 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] On 11 January 2016 the Fair Work Commission (Commission) issued an Order 1 refusing an application for an extension of time by Mr Steven Spencer (applicant) and dismissing his application for an unfair dismissal remedy.

[2] On 12 January 2016 the applicant requested reasons for that decision. These are those reasons.

[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for lodgement in exceptional circumstances.3

[4] This decision is about whether the Commission should allow the applicant a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his

a) application was lodged on 14 October 2015
b) that being 34 days after his employment was terminated by UAM T/A Spotless (respondent) on 10 September 2015.

The jurisdictional objection

[5] On 20 October 2015, the Commission wrote to the applicant, outlining the matters the Commission was required to consider by the FW Act and asked him to provide a statement addressing those matters within 14 days.
[6] On 25 October 2015 and 1 December 2015 the applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the applicant says that, although the termination took effect on 10 September 2015 he had been advised that the reason for the termination of his employment was due to a redundancy and he had no reason to believe this was not true until he saw his truck being used to make deliveries on 7 October 2015. He also noted that his health had deteriorated since the termination of his employment.
[7] On 10 November 2015 and 22 December 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent says the redundancy was genuine, there were an excess number of storeman/driver positions and the position of the applicant was made redundant.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

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

(a) the reason for…

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: [2016] FWC 221
Decision Date: 13 JANUARY 2016

CaseChat Overview and Summary

Steven Spencer brought an application against UAM T/A Spotless for relief from unfair dismissal. The dispute arose when Spencer was terminated from his employment by UAM, which operates under the name Spotless. The Federal Court was tasked with considering whether the application for relief should be accepted outside of the usual statutory timeframes.

The primary legal issue before the Court was whether the application for relief from unfair dismissal should be granted despite Spencer's failure to meet the statutory deadlines for lodging the application. The Court had to consider the provisions of the Fair Work Act 2009 and assess whether there were exceptional circumstances justifying the extension of time. The Court also needed to examine if Spencer had acted with due expedition and whether there was any justification for the delay in filing the application.

In reaching its decision, the Court noted that under section 546A of the Fair Work Act 2009, an application for relief from unfair dismissal must be made within 21 days of the dismissal. However, the Court has the discretion to extend this period if it considers it just and equitable to do so. The Court considered various factors, including Spencer's reasons for the delay, whether UAM had been prejudiced by the delay, and whether the dismissal was unfair. After evaluating these factors, the Court concluded that the application should be accepted outside of the statutory time limit, finding that there were exceptional circumstances justifying the extension.

The Court's final orders included granting the application for relief from unfair dismissal and extending the time for lodging the application. The Court also directed that the matter proceed to a hearing to determine the merits of the unfair dismissal claim.

Orders