Adam Constable v Mercy Community Services SEQ Limited - [2023] FWC 1828

[2023] FWC 1828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Adam Constable
v

Mercy Community Services SEQ Limited

(C2023/2307)

COMMISSIONER HUNT

BRISBANE, 26 JULY 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – application made out of time – employee suffering PTSD – ignorance of general protections jurisdiction.

On 20 April 2023, Mr Adam Constable made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by Mercy Community Services SEQ Limited (the Respondent) in contravention of the general protection provisions of the Act.

Mr Constable was dismissed on 29 March 2023.

Section 366 of the Act states:

‘366 Time for application

(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2)   The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a)   the reason for the delay; and
(b)   any action taken by the person 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 person and other persons in a like position.’

For Mr Constable to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 19 April 2023. The application has been made one day out of time.

Mr Constable seeks an extension of time within which to make his application.

Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing by Microsoft Teams was convened on 25 July 2023. Mr Constable appeared and gave evidence. Mr Carl Roberts, HR Operations Manager appeared for the Respondent.

Evidence of Mr Constable

Mr Constable commenced employment with the Respondent on 6 February 2023 as a Support Worker in Gladstone. He stated that on his second day of employment, a young male known to the Respondent attended Mr Constable’s work premises at approximately 9:30am. His case worker, Casey, was not available. Mr Constable stated he would call her for him.

At approximately 9:45am, the young man left. He returned at approximately 10:00am, demanding to be driven to Brisbane to his father’s place. Casey was able to speak to him on the phone and assured him arrangements would be made to provide him transport to Brisbane, but it was still to be organised. He again left the premises.

The young man returned at around 10:35am, at which point Mr Constable was the only staff member present. The young man was enraged, threatening to destroy all property, steal Mr Constable’s belongings and assault him. The young man made vile threats to Mr Constable.

After the young man left, the staff member returned, and police attended. Mr Constable declined to make a formal statement at…

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: [2023] FWC 1828
Decision Date: 26 JULY 2023

CaseChat Overview and Summary

Adam Constable brought an application to the Fair Work Commission (FWC) against Mercy Community Services SEQ Limited, alleging that he was dismissed in contravention of the general protections provisions of the Fair Work Act 2009 (Act). The central issue was whether the FWC should extend the time limit for Mr Constable's application, which was made one day after the statutory deadline. The application's lateness was due to Mr Constable's ignorance of the general protections jurisdiction, despite experiencing significant personal and professional challenges, including a traumatic incident at work and the terminal illness of his sister.

The FWC evaluated the application under section 366(2) of the Act, which sets out the factors to consider when deciding whether to allow an extension of time. These include the reason for the delay, any action taken by the applicant to dispute the dismissal, the prejudice to the employer, the merits of the application, and fairness to other similarly situated individuals. The FWC found that Mr Constable's ignorance of the legal avenue for relief did not constitute exceptional circumstances. Furthermore, Mr Constable did not take any steps to dispute his dismissal, nor did he provide evidence that the delay caused no prejudice to the employer. The merits of the substantive application were considered neutrally, and the fairness criterion was deemed neutral. Given these considerations, the FWC concluded that there were no exceptional circumstances warranting an extension of time, and thus, the application for an extension was refused, and the substantive application was dismissed.

Orders