Bruce MacNeil v The Trustee for the ARC Unit Trust - [2025] FWC 425

[2025] FWC 425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bruce MacNeil
v

The Trustee for the ARC Unit Trust

(U2025/97)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 13 FEBRUARY 2025

Unfair dismissal application – filed out of time – circumstances not exceptional – minimum employment period not met – application dismissed.

Introduction

This decision concerns an application by Mr Bruce MacNeil (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, the Trustee for the ARC Unit Trust trading as Arcare Aged Care (Respondent).

The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission). The Respondent contends that an extension of time should not be granted and the Applicant did not meet the minimum employment period.

I conducted a hearing, by telephone, on 31 January 2025 in relation to the Applicant’s request for an extension of time and the Respondent’s contention that the Applicant did not meet the minimum employment period. The Applicant gave evidence at the hearing, as did Ms Jennifer Wu, Recruitment Co-ordinator, for the Respondent.

I have decided, for two separate reasons, to dismiss the Applicant’s unfair dismissal application against the Respondent. First, the unfair dismissal application was filed outside the 21 day time period prescribed by the Act and there are no exceptional circumstances to enliven the exercise of a discretion to extend time. Secondly, the Applicant did not complete a period of employment with the Respondent of at least the minimum employment period, with the result that he is not protected from unfair dismissal within the meaning of s 382 of the Act.

Extension of time

The Applicant’s dismissal from his employment with the Respondent took effect on 5 December 2024. The Applicant lodged his unfair dismissal application in the Commission on 3 January 2025.

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 26 December 2024, which was a public holiday, with the result that the 21 day period ended on 27 December 2024. The application was therefore filed seven days 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…

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 Bruce MacNeil v The Trustee for the ARC Unit Trust

Details

AGLC: Bruce MacNeil v The Trustee for the ARC Unit Trust [2025] FWC 425
Case: [2025] FWC 425
Decision Date: 13 FEBRUARY 2025

CaseChat Overview and Summary

In the case of Bruce MacNeil v The Trustee for the ARC Unit Trust, Mr. Bruce MacNeil lodged an application for an unfair dismissal remedy against his former employer, the Trustee for the ARC Unit Trust trading as Arcare Aged Care, out of time. MacNeil sought an extension of time to lodge his unfair dismissal application in the Fair Work Commission (FWC). The Respondent argued that an extension of time should not be granted and that MacNeil did not meet the minimum employment period required to be protected from unfair dismissal. MacNeil contended that he had a learning disability which caused him to misread the time frame for lodging his unfair dismissal application. The Deputy President Saunders held a hearing by telephone on 31 January 2025 to assess the application for an extension of time and the contention that MacNeil did not meet the minimum employment period.

The Deputy President found that MacNeil's unfair dismissal application was filed outside the 21-day time period prescribed by the Fair Work Act 2009, and there were no exceptional circumstances to justify an extension of time. The Deputy President also found that MacNeil did not complete a period of employment with the Respondent of at least the minimum employment period, which is six months for a business that is not a small business employer. As a result, MacNeil was not protected from unfair dismissal. The Deputy President concluded that the unfair dismissal application should be dismissed on these two separate grounds.

In summary, the Deputy President dismissed MacNeil's unfair dismissal application against the Respondent due to the application being filed outside the 21-day time period and MacNeil not meeting the minimum employment period. The Deputy President found that MacNeil's dyslexia was a contributing factor to the delay in lodging the application, but it did not constitute exceptional circumstances. Furthermore, the Deputy President found that MacNeil's employment period with the Respondent commenced on 7 June 2024, and his dismissal took effect on 5 December 2024, which was less than six months. As a result, MacNeil was not protected from unfair dismissal.

Orders