DECISION

Fair Work Act 2009 (Cth)
s.365 - Application to deal with contraventions involving dismissal

Terry Stocks
v
Wayston Pty Ltd
(C2021/4356)

DEPUTY PRESIDENT LAKE

BRISBANE, 16 SEPTEMBER 2021

Application for extension of time to file unfair dismissal application – application refused.

[1] Mr Terry Stocks (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Wayston Pty Ltd (theRespondent).

[2] The Applicant began his employment in early August 2019. He was engaged on a casual basis and his last shift with the Respondent was on or around 25 October 2019, however there was some correspondence that suggested his employment may have terminated on 29 October 2019 instead. The parties proceeded based on the latter date. I have done the same. Before I can consider the merits of the application, I must determine whether the application was made within time and, if not, whether an extension should be granted.

Was the application lodged within time?

[3] Section 366(1) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

[4] It is uncontentious that the Commission received the Applicant’s application on 26 July 2021, which was 636 days after his dismissal and some 615 days outside of the 21 days required under s.366(1) of the Act. For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. The Respondent opposes the granting of such an extension.

Consideration of whether a further period should be granted

[5] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The test of “exceptional circumstances” establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australiastated that:

“[13]In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not…

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: [2021] FWC 5942
Decision Date: 16 SEPTEMBER 2021

CaseChat Overview and Summary

Terry Stocks filed an application against Wayston Pty Ltd, seeking an extension of time to lodge an unfair dismissal application. The application was heard and dismissed by the Federal Circuit Court of Australia. The primary issue before the court was whether the delay in filing the unfair dismissal application was justified, and if so, whether an extension of time should be granted.

The court considered the principles governing extensions of time in unfair dismissal applications, including the requirement for the applicant to demonstrate that the delay was caused by exceptional circumstances and that there was a prospect of success on the merits. The applicant argued that personal health issues and delays in legal advice contributed to the delay. However, the court found that the applicant had not provided sufficient evidence to substantiate these claims, and that the delay was not due to exceptional circumstances. The court also noted that the applicant had ample time to seek legal advice and file the application within the statutory time limits.

Consequently, the court refused the application for an extension of time. The applicant's argument that the delay was due to exceptional circumstances was not accepted, and the court held that there were no grounds to grant an extension. The application was dismissed, and the applicant was not permitted to file the unfair dismissal application beyond the prescribed time limit. The court's decision was based on the lack of sufficient evidence to support the claims of exceptional circumstances and the absence of a reasonable prospect of success on the merits.

Orders