Adam Houten v Checkmate Technology Pty Ltd - [2025] FWC 2007

[2025] FWC 2007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Adam Houten
v

Checkmate Technology Pty Ltd

(C2025/4759)

COMMISSIONER SPENCER

BRISBANE, 11 JULY 2025

Application to deal with general protections contraventions involving dismissal – jurisdictional objection – filed out of time – extension of time not granted – application dismissed.

Introduction

Mr Adam Houten (the Applicant) made a General Protections application pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with alleged general protections contraventions involving dismissal. The Applicant submitted that his employment was terminated by Checkmate Technology Pty Ltd (the Employer/Respondent) on 6 January 2025.

The Respondent in their Form F8A – Response to a general protections application involving dismissal, raised two jurisdictional objections: that the application was lodged out of time and that the Applicant was not dismissed within the meaning of s.386 of the Act (on the basis that he was not an employee of the Respondent).

The Applicant had two agreements with the Respondent; the first was from 16 November 2022 to August 2023, and the second was from 1 September 2023 to 6 January 2025. The Respondent stated that these agreements were engaged in with the Applicant as an independent contractor. The Applicant maintained he was an employee of the Respondent.

The Applicant filed his application on 21 May 2025; this was over four months since the conclusion of the second agreement between the parties. The Respondent stated that a 7 day notice period was given. The Applicant submitted that Monday, 6 January 2025 (being the end of the agreement) was his date of dismissal. Using this date, his application should have been filed by Tuesday, 28 January 2025 (noting that Monday, 27 January 2025 was a public holiday). Accordingly, the Applicant sought an extension of time pursuant to s.366(1)(b) of 113 days. This decision relates to this jurisdictional issue only regarding the required extension of time to accept the application. The relevant legislative provisions are set out below.

Relevant Legislation

The matter was listed for a Determinative Conference on Wednesday, 2 July 2025 by Microsoft Teams Video. Directions were set for the provision of submissions prior to the Determinative Conference in relation to the jurisdictional objection. The Directions included the relevant legislation for the consideration of this matter as set out in s.366.

“366 Time for Application

(1) The 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…

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.

Continue reading Adam Houten v Checkmate Technology Pty Ltd

Details

AGLC: Adam Houten v Checkmate Technology Pty Ltd [2025] FWC 2007
Case: [2025] FWC 2007
Decision Date: 11 JULY 2025

CaseChat Overview and Summary

Adam Houten filed an application under section 365 of the Fair Work Act 2009, alleging general protections contraventions involving dismissal against Checkmate Technology Pty Ltd. Houten claimed that his employment was terminated by Checkmate on 6 January 2025, and he filed his application on 21 May 2025, which was beyond the statutory 21-day timeframe. Checkmate raised two jurisdictional objections: the application was filed out of time, and Houten was not dismissed within the meaning of section 386 of the Act as he was an independent contractor, not an employee. Houten argued that he was an employee and sought an extension of time to file his application.

The court had to decide whether 'exceptional circumstances' existed to grant Houten an extension of time beyond the statutory 21-day limit. The court considered the criteria in section 366(2) of the Act: the reason for the delay, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and others in a similar position. Houten claimed that he was not informed about the 21-day timeframe by his legal advisers and the Fair Work Ombudsman, and he was confused about his employment status. He also argued that he was under significant pressure and sought medical and psychological support, which hindered his ability to file his application. Checkmate argued that ignorance of the statutory time limit is not an exceptional circumstance and that Houten was not taking action to dispute the dismissal but was instead pursuing other claims.

The court found that there were no 'exceptional circumstances' justifying an extension of time. Houten was not advised of the 21-day timeframe because his inquiries were not related to an alleged dismissal. There were unexplained periods within the overall delay, and even after becoming aware of the timeframe, Houten delayed further before filing his application. Houten only took action to dispute the dismissal after 21 May 2025. The court also found that the delay would cause prejudice to Checkmate, and the merits of the application were neutral. Finally, fairness as between the person and others in a similar position did not support granting an extension of time. The court concluded that the significant delay and the circumstances of the delay were not exceptional, and the discretion to extend the statutory time limit was not exercised. The application was dismissed.

The court dismissed the application on the jurisdictional issue of the extension of time, and no further orders were made.

Orders