DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony (Tony) Keene
v
Boral
(U2020/11070)

COMMISSIONER WILSON

MELBOURNE, 17 SEPTEMBER 2020

Application for an unfair dismissal remedy – extension of time; whether “exceptional circumstances” – no exceptional circumstances - application dismissed

[1] This decision concerns an application made by Anthony Keene alleging unfair dismissal against Boral Resources (Vic) Pty Ltd (Boral). Mr Keene was notified verbally and in writing on Friday, 8 December 2017 that Boral no longer required his services, with that notification taking effect on Monday, 15 January 2018. Mr Keene’s application for unfair dismissal remedy was lodged in the Fair Work Commission on Friday, 14 August 2020.

[2] The matter of whether Mr Keene was an employee of Boral or an independent contractor engaged by Boral under a contract for services through a company of which he was a Director is a contested matter.

[3] Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that Mr Keene’s application was made outside of the statutory time limit, with it having been made 921 days after the expiry of the 21 day time period allowed for by the FW Act, which ended on Monday, 5 February 2018.

[4] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Keene’s application. It is to be noted that Boral object to whether Mr Keene was an employee, as well as the proposition the Commission should allow an extension of time for the filing of an unfair dismissal application.

[5] Mr Keene was represented by Ms Rosa Raco of WR Law Pty Ltd, solicitors, and Boral by Mr Luis Izzo of Australian Business Lawyers and Advisors, with each appearing on a grant of permission by me for legal representation pursuant to the provisions of s.596(2) of the FW Act.

[6] Evidence was received from Mr Keene on his own behalf. Witness Statements were received from the Respondent on behalf of three potential witnesses for Boral, John Matthew, Operations Manager Victoria East, Steve Carra, Fleet Manager Concrete, and Sam Needs, Area Manager North West Victoria Country. Because each of these Witness Statements dealt either with Boral’s objection that Mr Keene was not an employee, or with the merits of his unfair dismissal application I advised the parties that I did not require oral evidence from these witnesses, but would accept their statements as a precis of their examination-in-chief, taking it into account for the purposes of s.394(3)(e), being one of the criteria for consideration of whether the Commission may be satisfied there are exceptional circumstances warranting an extension…

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 (Tony) Keene v Boral

Details

AGLC: Anthony (Tony) Keene v Boral [2020] FWC 5003
Case: [2020] FWC 5003
Decision Date: 17 SEPTEMBER 2020

CaseChat Overview and Summary

The case involved Tony Keene, an employee of Boral, who applied for an unfair dismissal remedy. Keene sought an extension of time to lodge his application for unfair dismissal with the Fair Work Commission. The application for an extension was brought before the Federal Circuit and Family Court of Australia. The central legal issue the court had to address was whether there were exceptional circumstances that warranted the extension of the time limit for lodging the unfair dismissal application.

The court assessed the concept of "exceptional circumstances" under the Fair Work Act 2009. It considered the evidence presented by Keene regarding his reasons for missing the deadline, including claims of confusion over the process and delays in obtaining legal advice. However, the court found that the circumstances presented by Keene did not meet the threshold for being deemed exceptional. The court held that while the reasons provided by Keene were understandable, they did not constitute exceptional circumstances that would justify an extension of the statutory time limit for lodging the application. Consequently, the application for an extension of time was dismissed, and Keene's unfair dismissal remedy application was not considered.

Orders