Thenahandi Silva v Instant Xpress Pty Ltd - [2024] FWC 2441

[2024] FWC 2441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Thenahandi Silva
v

Instant Xpress Pty Ltd

(C2024/4511)

COMMISSIONER SCHNEIDER

PERTH, 9 SEPTEMBER 2024

Application to deal with contraventions involving dismissal

Mr Thenahandi Silva (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he has been dismissed from his employment with Instant Xpress Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.

The information provided in the application indicates that the application may have been made out of time. Before dealing with the dispute, I must be satisfied that the application was not made out of time.

When must an application for the Commission to deal with a dismissal dispute be made?

Section 366(1) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

It is a matter of record that the application was made on 1 July 2024.

When did the dismissal take effect?

It is not in dispute, and I so find, that the dismissal took effect on 13 May 2024.

As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

The Full Bench has further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

As I found above, the dismissal took effect on 13 May 2024. The final day of the 21-day period was therefore 4 June 2024 (as Monday 3 June 2024 was a public holiday in Western Australia) and ended at midnight on that day. The application was made on 1 July 2024. The application was made 27 days late.

The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Was the application made within such further period as the Commission allows?

Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.

Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

I set out my consideration of each matter below.

Submissions

The Respondent was directed to file any submissions…

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: [2024] FWC 2441
Decision Date: 9 SEPTEMBER 2024

CaseChat Overview and Summary

Thenahandi Silva, an employee of Instant Xpress Pty Ltd, applied to the Fair Work Commission (FWC) for the Commission to address his dismissal under section 365 of the Fair Work Act 2009. The applicant claimed that his dismissal was in breach of Part 3-1 of the Act. The Commission must first determine if the application was timely. According to section 366(1) of the Act, an application for dismissal must be made within 21 days after the dismissal took effect, or within a period allowed by the Commission if there are exceptional circumstances. The dismissal in this case took effect on 13 May 2024, and the application was made on 1 July 2024, 27 days late. The Commission must now consider whether to allow a further period for the application to be made, based on the factors outlined in section 366(2) of the Act.

The applicant explained that after his employment ended, his mental health deteriorated, and he could not lodge his application. He had been diagnosed with anxiety and depression and had difficulty performing daily tasks. The applicant’s girlfriend had contacted WA Police to perform a welfare check on him. The applicant also suffered significant financial distress and needed his local church's help for support. The applicant's representative confirmed with him that the final day for filing, in reliance on the termination date provided in his instructions, would be 24 June 2024. The applicant formally engaged his representative and obtained a medical certificate confirming his mental health diagnoses on 11 June 2024. The applicant confirmed to his representative on 18 June 2024 that his termination date was in fact 13 May 2024. The representative completed the application on 1 July 2024.

The Commission considered the reason for the delay, the action taken by the applicant to dispute the dismissal, the prejudice to the employer, the merits of the application, and fairness as between the applicant and other persons in a similar position. The Commission found that the reason for the delay was understandable in the circumstances, and the applicant did not take any actions to dispute the dismissal prior to making the application on 1 July 2024. There would be no prejudice to the employer if an extension of time were to be granted. It is not possible to make any firm or detailed assessment of the merits, as there are contested points of fact. There is nothing to weigh in relation to the fairness consideration. The Commission found that there are exceptional circumstances, but it decided not to exercise its discretion to grant an extension of time.

The Commission decided not to exercise its discretion to grant an extension of time, as the application has a likely fatal jurisdictional issue, as a result of the Respondent's trading status. The Commission found that to grant the applicant an extension of time, knowing that the application will very likely prove fruitless and the very real possibility that the Commission may not have jurisdiction to determine the matter in light of the Respondent's status, is not an efficient use of the Commission's time and not in line with the objects of the Act. The Commission dismissed the applicant's application for the Commission to deal with a dismissal dispute.

Orders