Syed Imam v AESDAN Pty Ltd - [2020] FWCFB 6540

[2020] FWCFB 6540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Syed Imam

AESDAN Pty Ltd

(C2020/7811)

VICE PRESIDENT CATANZARITI
COMMISSIONER LEE
COMMISSIONER YILMAZ

SYDNEY, 9 DECEMBER 2020

Appeal against decision [2020] FWC 5398 of Deputy President Cross at Sydney on 9 October 2020 in matter number U2020/10403. Section 394 application, extension of time refused to file application. Permission to appeal not granted.

Background

This decision deals with an appeal, for which permission to appeal is required, made by Mr Syed Imam (the Appellant) under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a Decision[1] of Deputy President Cross issued on 9 October 2020. The Deputy President declined to extend time to the Appellant to file an unfair dismissal application (Application) made under s 394 of the Act.

The Appellant filed his Application on 29 July 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the dismissal took effect, or within a further period for the application to be made if the Commission is satisfied that exceptional circumstances exist.

The Deputy President observed that the Application was lodged 23 days out of time, pursuant to the statutory time limit stipulated in s 394(2) of the Act. In his Decision, the Deputy President found that, having regard to s 394(3) of the Act, there were no exceptional circumstances warranting the granting of a further period for the Appellant to make his Application.[2]

This matter was subject to a telephone hearing on 30 November 2020. The Full Bench heard the parties on permission to appeal only. Permission for the Respondent to be legally represented at the telephone hearing was refused, although the Full Bench permitted the Respondent’s representatives to attend the hearing.

Legislative provisions and permission to appeal principles

Section 394(3) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

“(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 the delay; and

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

(c) any action taken by the person to dispute the dismissal; 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.”

The test of “exceptional circumstances” establishes a “high hurdle” for an application for an extension.[3] A decision as to whether to extend time under s 394(2) involves the exercise of discretion.[4]

The meaning of “exceptional circumstances” in s 366(2) of the Act concerning late lodgment of general protections applications (being provisions which are in relevantly identical terms to the provisions of s 394(3) concerning late lodgment of unfair dismissal applications) was considered…

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: [2020] FWCFB 6540
Decision Date: 9 DECEMBER 2020

CaseChat Overview and Summary

The appeal concerns a decision by Deputy President Cross in the Fair Work Commission, rendered on 9 October 2020, pertaining to a matter between Syed Imam and AESDAN Pty Ltd. The applicant, Syed Imam, sought to appeal the decision of the Deputy President, who had dismissed his application for an extension of time to file an unfair dismissal application. The primary issue before the court was whether the applicant's circumstances warranted an extension of the statutory time limit to lodge his application for unfair dismissal.

The court examined the reasons provided by the applicant for his delay in filing the application, considering whether these reasons were exceptional. Imam argued that significant delays in the processing of his earlier application for termination of employment led to the inability to meet the statutory time limit. The court assessed the credibility of the applicant's evidence and the reasonableness of the delay, ultimately determining whether the delay was within the applicant's control or was due to external factors.

The court found that the applicant had not provided compelling evidence to justify an extension of the time limit. The reasons provided for the delay did not meet the exceptional circumstances threshold required by law. Consequently, the court dismissed the application for an extension of time and refused permission to appeal the decision. The court's reasoning focused on the lack of credible evidence and the applicant's responsibility to ensure timely compliance with procedural requirements. The appeal was unsuccessful, and the decision of the Deputy President was upheld.

Orders