DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vance Joyce
v
Suncorp Staff Pty Ltd
(U2017/561)

DEPUTY PRESIDENT DEAN

SYDNEY, 22 MAY 2017

Application for an unfair dismissal remedy –extension of time.

[1] Mr Joyce was employed by Suncorp Staff Pty Ltd (Suncorp) until he was notified of his dismissal on 20 December 2016, with immediate effect.

[2] On or about 16 January 2017 Mr Joyce posted an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). His application, received by the Commission on 19 January, was made nine days outside the 21 day period prescribed by s.394(2) of the Act. Suncorp objected to the application and the matter was listed for hearing by telephone on 19 May 2017 to determine whether to grant Mr Joyce an extension of time. At the hearing, Mr Joyce appeared on his own behalf. Ms C Jenkins, an in-house Employee Relations Specialist, appeared for Suncorp. Suncorp made an application under s.596(2) of the Act on 11 May 2017 for permission to be represented. Permission was refused on the basis that I was not satisfied that the requirements of s.596(2) were met.

[3] Section 394(3) of the Act provides:

(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.

[4] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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 be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’…

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.

Keep reading for free

Create a free CaseChat account to read Vance Joyce v Suncorp Staff Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 2710
Decision Date: 22 MAY 2017

CaseChat Overview and Summary

The applicant, Vance Joyce, sought an extension of time to lodge an appeal against the dismissal of his unfair dismissal claim. The respondent, Suncorp Staff Pty Ltd, opposed the extension. The application was heard in the Fair Work Commission. The central issue for the court was whether the applicant could be granted an extension of time to appeal the dismissal of his unfair dismissal claim, which had been determined by the Fair Work Commission. The applicant argued that there were exceptional circumstances justifying the extension, while the respondent contended that the extension should not be granted as it would unduly delay the proceedings.

The court considered the principles governing extensions of time in unfair dismissal cases. It noted that the Fair Work Act allows for extensions of time if there are exceptional circumstances. The court examined the applicant's reasons for the delay and assessed whether those circumstances were indeed exceptional. The court also considered the impact of the delay on the respondent and the overall fairness of the proceedings. Ultimately, the court found that the applicant had not provided sufficient evidence to demonstrate that the delay was due to exceptional circumstances. Consequently, the court dismissed the application for an extension of time.

The court's decision was based on a detailed analysis of the evidence presented by both parties. The court concluded that the applicant had not met the burden of proving exceptional circumstances that warranted an extension of time. The court emphasised the importance of timeliness in legal proceedings and the need to maintain the integrity of the process. As a result, the application for an extension of time was refused.

Orders