TERMINATION OF EMPLOYMENT – extension of time – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commission refused to grant appellant extension of time to file unfair dismissal application and dismissed application – found that while there was an acceptable explanation for part of the delay, there was no satisfactory explanation for the further delay and no establishment of exceptional circumstances – appellant raised ten grounds of appeal including denial of procedural fairness on basis that the Commission relied on counsel’s concession that hearing should proceed in absence of appellant and by Commission withholding view at hearing that appellant’s case lacked fundamental element and concluding hearing without raising issue – also alleged denial of natural justice on basis of reasonable apprehension of bias by Commission due to comments made immediately after hearing – Full Bench held in the public interest to grant permission to appeal – appeal involved a serious challenge to fairness of process conducted by Commission – review necessary to ensure that any alleged procedural unfairness examined and, if demonstrable, remedied – raised issues of general application concerning procedures applied in respect of extension of time applications under s.394(3) of FW Act – permission to appeal granted – Commission’s powers on appeal only exercisable if error made by primary decision maker – to establish appealable error in exercise of discretion under s.394(3), identification of error of type in House v The King required – Full Bench considered number of matters arising from the course of proceedings critical to determination of appeal – appellant at all times represented – directions gave appellant opportunity to file evidence – explanatory documents provided to appellant specifically identified need to explain whole of delay in bringing application – appellant chose not to file any statement of evidence explaining a period of the delay – representative present at hearing affirmed proceeding at hearing without appellant – no submission advanced explaining the delay or suggestion at hearing that representative wished to adduce evidence from appellant regarding reason for delay – application to re-open case did not disclose purpose of re-opening – Full Bench held prima facie these matters did not indicate any denial of fair opportunity for applicant to present case – only reason appellant did not give evidence in support of his own case or otherwise provide a proper explanation for delay was that he failed to take up opportunity to do so – procedural fairness required the Commission to give appellant a reasonable opportunity to present his case, not to ensure he took best advantage of opportunity – Full Bench rejected grounds of appeal – did not consider decision was attended by appealable error – satisfied refusal to grant extension of time was reasonably open to Commission in exercise of its discretion and that appellant was afforded procedural fairness – appeal dismissed. Appeal by Ashton against decision of Platt C of 21 October 2016 [[2016] FWC 7668] Re: Qube Bulk P/L
…
