David Anderson v Real Community Services Pty Ltd - [2023] FWC 1414

[2023] FWC 1414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Anderson
v

Real Community Services Pty Ltd

(U2023/3496)

DEPUTY PRESIDENT LAKE

BRISBANE, 16 JUNE 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

Mr David Anderson (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Real Community Services Pty Ltd (the Respondent).

On the Form F2, the Applicant states that he commenced his employment with the Respondent on 9 November 2020 and was notified of his dismissal on 31 March 2023. The dismissal was effective on the same day.

The Applicant lodged his application on 23 April 2023. The application was lodged 2 days outside the statutory time limit prescribed by s.394(2) of the Act.

The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.

Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 9 June 2023.

Should a further period be granted?

Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and

(c)         any action taken by the person to dispute the dismissal; and
(d)         prejudice to the employer (including prejudice caused by the delay); and
(e)         the merits of the application; and
(f)          fairness as between the person and other persons in a like position.”

The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to…

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: [2023] FWC 1414
Decision Date: 16 JUNE 2023

CaseChat Overview and Summary

David Anderson filed an application with the Fair Work Commission (FWC) seeking a remedy for his alleged unfair dismissal by Real Community Services Pty Ltd. The dismissal occurred on 31 March 2023, and Anderson lodged his application on 23 April 2023, two days beyond the statutory 21-day limit set by section 394(2) of the Fair Work Act 2009. The court had to decide whether to grant an extension of time for Anderson to lodge his application under section 394(3) of the Act, which requires the FWC to be satisfied of exceptional circumstances.

The court considered various factors under section 394(3) of the Act, including the reason for the delay, whether Anderson was aware of the dismissal before or after it occurred, any action taken to dispute the dismissal, the prejudice to the employer, the merits of the application, and fairness to others in similar situations. Anderson attributed his delay to a misunderstanding of the statutory timeframe and emotional distress from the dismissal. The court found that the explanation for the delay was insufficient and that Anderson did not provide any other evidence to support his case for an extension. Additionally, Anderson did not take any action to dispute the dismissal, and the merits of his application were not sufficiently established. The court concluded that there were no exceptional circumstances warranting an extension of time.

In light of the considerations above, the Deputy President dismissed Anderson's application for an extension of time. The court found that Anderson's misunderstanding of the statutory timeframe, coupled with the absence of any other mitigating factors, did not constitute exceptional circumstances. The court also noted the strict 21-day timeframe and the explicit instructions on the Commission's website regarding the deadline for filing an unfair dismissal application. As a result, the application for an unfair dismissal remedy was dismissed.

Orders