Anthony Brown v Coffs Harbour Support Services - [2024] FWC 937

[2024] FWC 937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Brown
v

Coffs Harbour Support Services

(U2024/3011)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 11 APRIL 2024

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

This decision concerns an application by Mr Anthony Brown (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Coffs Harbour Support Services Ltd (Respondent).

The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).

I conducted a hearing, by telephone, on 8 April 2024 in relation to the Applicant’s request for an extension of time.

The Applicant’s dismissal from his employment with the Respondent took effect on 23 February 2024. The Applicant lodged his unfair dismissal application in the Commission at 10:46pm on 16 March 2024.

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 period of 21 days ended at midnight on 15 March 2024. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

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 requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

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 appropriate weight in assessing whether there are…

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 Anthony Brown v Coffs Harbour Support Services

Details

AGLC: Anthony Brown v Coffs Harbour Support Services [2024] FWC 937
Case: [2024] FWC 937
Decision Date: 11 APRIL 2024

CaseChat Overview and Summary

In the case of Anthony Brown v Coffs Harbour Support Services, the applicant, Mr Brown, sought an extension of time to lodge his unfair dismissal application in the Fair Work Commission. The application was filed one day outside the statutory 21-day period after his dismissal took effect. The central issue for the Deputy President was whether exceptional circumstances existed to warrant an extension under section 394(3) of the Fair Work Act 2009. The Deputy President considered various factors, including the reason for the delay, whether Mr Brown became aware of the dismissal after it had taken effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between Mr Brown and others in similar positions.

The Deputy President found that Mr Brown's explanation for the delay—a miscalculation of the 21-day period and technical difficulties with the online lodging system—did not constitute exceptional circumstances. While Mr Brown had attempted to lodge his application on time, the technology issues did not prevent him from lodging the application the next day. Additionally, the absence of prejudice to the employer and the minor action taken by Mr Brown to dispute his dismissal carried little weight in the assessment. Although Mr Brown had reasonable prospects of success in his unfair dismissal application, the overall circumstances did not meet the threshold of exceptional circumstances required for an extension of time. Consequently, the application for an extension of time was dismissed, and the unfair dismissal application was deemed to be filed out of time.

The final orders of the Fair Work Commission were that the application for an unfair dismissal remedy be dismissed due to the failure to lodge the application within the required timeframe, and no extension of time was granted under section 394(3) of the Fair Work Act 2009.

Orders