Guide to termination and unfair dismissal rights of - Legal ...

82 s394(3). The Explanatory Memorandum to the FWAct is relevant here. The Explanatory Memorandum cites the decision inBrodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298. The case sets out the principles relating to the exercise of discretionto allow an application to proceed which has been lodged outside of the required time limit. The ‘Brodie-Hanns’ principalsare as follows:“(1) Special circumstances are not necessary but the [Tribunal] must be positively satisfied that the prescribed period shouldbe extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanationfor the delay which makes it equitable to extend. (2) Action taken by the Applicant to contest the termination, other thanapplying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour thegranting of an extension of time. (3) Prejudice to the Respondent including prejudice caused by delay will go against thegranting of an extension of time. (4) The mere absence of prejudice to the Respondent is an insufficient basis to grant anextension of time. (5) The merits of the substantive application may be taken into account in determining whether to grant anextension of time. (6) Consideration of fairness as between the Applicant and other persons in a like position are relevant tothe exercise of the [Tribunal’s] discretion.”83 The factors to be taken into account somewhat mirror the principles stated in Brodie-Hanns v MTV Publishing Ltd (see note82 above).84 In the following cases FWA did not allow an application filed after the time limit to proceed: Wemyss v Mission AustraliaEmployment Services [2010] FWA 1798 (where the employee was suffering stress, anxiety insomnia and back pain); SWv S Pty Ltd [2010] FWA 3944 (where the employee thought a complaint to the Fair Work Ombudsman was the formalcommencement of an unfair dismissal claim); Prasad v Alcatel-Lucent Australia Ltd [2010] FWA 7804 (where the employeedelayed for 119 days after the time limit, during which period he sought reemployment with the employer, was initiallyunaware of the law and was reluctant to make an application while he sought a resolution through administrative means withthe employer).85 In the following cases FWA would allow an application filed after the time limit to proceed: Johnson v Joy Manufacturing CoPty limited t/as Joy Manufacturing [2010] FWA 1394 (where the employee tried to file his claim through the FWA websitebut failed and then posted his application which was delayed in the mail); Bastos v Caelli Constructions (VIC) Pty Ltd [2010]FWA 3105 (where an application that was 8 months late was allowed because the employee spoke very little English andwas therefore ignorant of his rights); Setterfield v Syefile Pty Ltd [2010] FWA 3351 (where the application was late becauseof the error of the employee’s lawyer); Jones v Holcim Australia Pty Ltd [2010] FWA 3129 (where an application was 2 dayslate because of a delay by the employee’s lawyer).86 s396.87 In relation to conferences generally, see s398. In relation to hearings generally, see s399.88 s397.89 s398(4) in regards to conferences. See also s590 relating the general powers of FWA to inform itself.90 s591.91 In respect of permission for representation by lawyers and paid agents see s596.92 s401(1).93 s401(1).94 s402.95 s405.96 Pt 4-1.97 s611.98 FWA may order security for costs pursuant to s404 and Rule 16 of the Fair Work Rules. It is not expected that FWA will oftenmake security for costs orders and FWA will not usually order security for costs before the conclusion of conciliation.99 s611(2).100 s402.101 In relation to appealing an unfair dismissal claim see s400.102 s604.103 s400(1).104 s400(2).105 Regarding appeals procedures and the time limit see Rule 12.3 of the Fair Work Australia Rules.106 Also note that the President of FWA may refer a question of law to the Full Court of the Federal Court. See s608.24