Anthony Talbot v Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services - [2024] FWC 335

[2024] FWC 335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Anthony Talbot

Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services

(U2024/328)

COMMISSIONER THORNTON

ADELAIDE, 18 MARCH 2024

Application for an unfair dismissal remedy– extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – no exceptional circumstances exist – matter dismissed.

This decision concerns an application by Mr Anthony Talbot (Mr Talbot or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

The Applicant’s employment with Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services (the Respondent) is alleged to have concluded on account of the Applicant’s dismissal on 18 December 2023. The Applicant says he was notified of his dismissal on 18 December 2023 by phone call from his employer. The Respondent agrees that this is when a conversation took place, in which Mr Talbot was advised there was no longer work for him to perform, but do not agree he was dismissed.

Section 394(2) 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 allowed by the Commission considering the factors in s.394(3) of the Act. In this instance, the period of 21 days concluded on 8 January 2024. The application was not filed until 22 days from the date of dismissal, making the application one day out of time. It is therefore necessary that the Applicant be granted an extension of time for his application to proceed.

In its Form F3 Response, the Respondent indicated it objected to jurisdiction because the application was filed out of time and the Applicant was not dismissed. The Respondent contends that the Applicant was a casual employee who was informed he was no longer required to perform work for the employer, following a downturn in work available. The Respondent says the employment contract offered to the Applicant made clear that no firm advance commitment to continuing and indefinite work was made and as such, his employment cannot be said to have been terminated when no further work was offered.
The issue of whether the time limit for the application to be made ought to be extended is a threshold issue to be determined by the Commission and is the subject of this decision.
I have determined, for the reasons set out below, that no exceptional circumstances exist to warrant granting an extension of time.

The evidence

The Commission conducted a Hearing by video via MS Teams to facilitate the determination of the extension of time application.

The Applicant was self-represented and participated in the hearing, giving evidence. The Applicant’s wife, Ms Katie Talbot also gave evidence on his behalf.

Ms Taylor, Human Resource Business Partner for the Respondent, appeared on behalf of the Respondent and also gave evidence regarding relevant matters within…

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: [2024] FWC 335
Decision Date: 18 MARCH 2024

CaseChat Overview and Summary

This case concerns an application by Mr Anthony Talbot (Mr Talbot or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant claims his employment with Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services (the Respondent) concluded on 18 December 2023, due to his dismissal. The Respondent agrees a conversation took place on that date, in which Mr Talbot was advised there was no longer work for him to perform but does not agree he was dismissed. An application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. In this instance, the period of 21 days concluded on 8 January 2024. The application was not filed until 22 days from the date of dismissal, making the application one day out of time. It is therefore necessary that the Applicant be granted an extension of time for his application to proceed. The issue of whether the time limit for the application to be made ought to be extended is a threshold issue to be determined by the Commission and is the subject of this decision. The Commissioner found there were no exceptional circumstances to warrant an extension of time. The reasons for the delay were either stress that caused him to have insufficient time to meet the deadline, or alternatively, an intentional decision to delay filing, coupled with a mistake as to the correct date. The absence of a valid reason for the delay does not support a finding of exceptional circumstances. The reasons advanced by the Applicant in this case for filing his application one day out of time do not provide an acceptable explanation for the delay and are not out of the ordinary course, unusual or exceptional. The absence of a valid reason for the delay does not support a finding of exceptional circumstances. The reasons for the delay, or any part of the delay, beyond the 21 day period do not support a finding of exceptional circumstances. The Commissioner declined to extend the time for filing of the Applicant’s claim for a remedy arising from an unfair dismissal, and the claim is therefore dismissed.

Orders