Andrew Brian Newcombe v ACT Couriers Pty Ltd T/A Khandu Couriers - [2023] FWC 2591

[2023] FWC 2591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Brian Newcombe
v

ACT Couriers Pty Ltd T/A Khandu Couriers

(U2023/7550)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 OCTOBER 2023

Application for an unfair dismissal remedy – extension of time granted

Mr Andrew Newcombe (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from ACT Couriers Pty Ltd T/A Khandu Couriers (the Respondent).

The Applicant says his dismissal took effect from 20 July 2023 and this application was lodged on 14 August 2023.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The Applicant filed his application 4 days outside the 21-day period and so his application can only proceed if the Commission grants a further period for it to be made.

The matter was initially listed for hearing by telephone on 26 September 2023, however it became apparent that the name and the email address provided for the Respondent was not correct and as a result I was not satisfied the Respondent, who did not appear, had been served with the application. The hearing was adjourned to 9 October to ensure the Respondent was properly served with the application and had an opportunity to appear. At the hearing on 9 October, the Applicant appeared and gave evidence on his own behalf. The Respondent was represented by its owner, Mr J Prior.
For the reasons set out below, I find there are exceptional circumstances and will extend time for the application to proceed.

Extension of time

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;
(b)   whether the person first became aware of the dismissal after it had taken effect;
(c)   any action taken by the person to dispute the dismissal;
(d)   prejudice to the employer (including prejudice caused by the delay);
(e)   the merits of the application; and
(f)    fairness as between the person and other persons in a similar position.

The requirement that these matters be taken into account means that each matter must be considered and given…

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

AGLC: Andrew Brian Newcombe v ACT Couriers Pty Ltd T/A Khandu Couriers [2023] FWC 2591
Case: [2023] FWC 2591
Decision Date: 11 OCTOBER 2023

CaseChat Overview and Summary

The matter of Andrew Brian Newcombe v ACT Couriers Pty Ltd T/A Khandu Couriers involves an application by Mr Newcombe for an unfair dismissal remedy under s 394 of the Fair Work Act 2009. The application was lodged on 14 August 2023, four days beyond the 21-day period mandated by the Act. The central dispute revolves around Mr Newcombe's dismissal, which he claims occurred on 20 July 2023, and the reasons given by the Respondent for this dismissal, namely allegations of rudeness to customers and an unsuitability for the job. The application before the Fair Work Commission seeks not only to address the dismissal's fairness but also an extension of time for the application to proceed, given the late filing.

The primary legal issue before the Commission was whether there were 'exceptional circumstances' justifying an extension of time for Mr Newcombe's application. Under s 394(3) of the Act, the Commission must consider several factors in determining whether to grant an extension, including the reason for the delay, the merits of the application, and the fairness between the parties. The onus was on Mr Newcombe to demonstrate that these factors combined to create exceptional circumstances warranting an extension. The Commission's decision hinged on balancing these factors to ascertain whether the delay was justifiable under the Act's provisions.

In its decision, the Commission found that there were indeed exceptional circumstances that warranted granting an extension of time for Mr Newcombe's application. The Commission noted that Mr Newcombe had made multiple attempts to lodge the application within the stipulated period, including personal visits to the Commission's office and efforts to electronically file the application despite his unfamiliarity with computers. The delay was attributed to these genuine attempts to comply with the Act's requirements, coupled with the confusion surrounding the receipt of his separation certificate. The Commission also considered the relatively short delay and the absence of prejudice to the Respondent, which, while not decisive, supported the grant of an extension. The merits of the application, though not fully adjudicated, were deemed neutral. Consequently, the Commission concluded that the exceptional circumstances test was satisfied, and an extension of time was warranted.

The Fair Work Commission, in its decision, granted an extension of time for Mr Newcombe's application to proceed. This decision allows the Commission to hear and determine the merits of the unfair dismissal claim. The Commission's order reflects this decision and permits the application to move forward, pending further hearings on the substantive issues of the dismissal.

Orders