Wynand Maree v OS MCAP Pty Ltd T/A Operations Services - [2022] FWC 1626

[2022] FWC 1626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wynand Maree
v

OS MCAP Pty Ltd T/A Operations Services

(U2022/5417)

COMMISSIONER PLATT

ADELAIDE, 28 JUNE 2022

Application for an unfair dismissal remedy – request for an extension of time – application dismissed.

Introduction

The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

This decision concerns whether I should exercise my discretion to allow Mr Wynand Maree a further period for his unfair dismissal application (Application) to be made against OS MCAP Pty Ltd T/A Operations Services (OS MCAP).

Background

Mr Maree lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with OS MCAP which his form F2 Unfair Dismissal Application advised took effect on 7 April 2022.

The application was lodged on 16 May 2022 and as such was lodged 18 days out of time.

On 23 May 2022, the Applicant filed a submission with the Commission with reasons as to why his application was filed out of time.

On 24 May 2022, directions were issued, and the parties were advised that the extension of time issue would be considered at a Hearing, conducted by teleconference, on 22 June 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Acknowledging that Mr Maree had included reasons for his late lodgement in his Form F2 Application and in the submissions filed on 23 May 2022, the Applicant was invited to file any further material addressing the factors in s394(3) by 6 June 2022. The Applicant filed a witness statement on 6 June 2022.

On 26 May 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal occurred 7 April 2022 and pressed the jurisdictional objection that the application was lodged out of time. The Respondent did not file any witness evidence in relation to the extension of time issue but filed further written submissions on 13 June 2022.

Hearing

A Hearing was conducted by way of teleconference on 22 June 2022. A sound file record of the Hearing was kept. Mr Mitchell Brown represented the Applicant whilst Mr Nick Le Mare represented the Respondent. Both were granted leave, unopposed, on the basis of s.596(2)(a) – complexity and efficiency.

Mr Maree gave evidence at the Hearing. His position is summarised as follows:

· The Applicant was dismissed by the Respondent on 7 April 2022 on the basis of a Fitness for Work assessment that was conducted in August 2021.

· After receiving his Termination Letter on 7 April 2022, the Applicant sent the Respondent an email challenging his dismissal and requesting…

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: [2022] FWC 1626
Decision Date: 28 JUNE 2022

CaseChat Overview and Summary

Wynand Maree sought an extension of time to file an unfair dismissal application against OS MCAP Pty Ltd T/A Operations Services (OS MCAP). The application was lodged 18 days out of time, with Maree citing his mistaken belief that he could file an unfair dismissal application with the Queensland Civil and Administrative Tribunal (QCAT) as the reason for the delay. The Commission was required to determine whether exceptional circumstances existed to warrant an extension of time.

The court considered the six criteria outlined in section 394(3) of the Fair Work Act 2009 (Cth), including the reason for the delay, any action taken by the person to dispute the dismissal, and prejudice to the employer. The court found that Maree had not provided a credible reason for the delay and had not acted to dispute the dismissal. Furthermore, there was no submission that the granting of an extension of time would prejudice OS MCAP. The court concluded that exceptional circumstances did not exist to warrant an extension of time.

The court dismissed the application for an extension of time. The decision serves as a reminder that applicants must adhere to the statutory timeframes for filing unfair dismissal applications and that exceptional circumstances must exist to warrant an extension of time.

Orders