Dean Phillips v LMP Project Services - [2025] FWC 691

[2025] FWC 691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dean Phillips
v

LMP Project Services

(U2024/14576)

COMMISSIONER HUNT

BRISBANE, 10 MARCH 2025

Application for an unfair dismissal remedy – Application made one day beyond 21-day time limit – Applicant suffered workplace injury – Applicant accessed Commission’s website during 21-day period – Applicant had capacity to make application within time – Reasons for delay not supportive of extension – No exceptional circumstances – Application dismissed

On 5 December 2024, Mr Dean Phillips made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with LMP Project Services Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

Mr Phillips was dismissed on 13 November 2024. To be within the 21-day time limit to bring an unfair dismissal application, the application needed to have been made by 4 December 2024. The application has therefore been made one day out of time. Mr Phillips seeks an extension of time within which to make his application.

Legislative requirements

Section 394 of the Act states:

“394      Application for unfair dismissal remedy
(1)       A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2)       The application must be made:
(a)       within 21 days after the dismissal took effect; or
(b)       within such further period as the FWC allows under subsection (3).

(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 similar position.”

Hearing

Directions were issued, providing the parties with an opportunity to file witness statements and submissions in relation to Mr Phillips’ application for an extension of time. A hearing was convened by video using Microsoft Teams on 28 February 2025. Mr Phillips represented himself at the hearing and gave evidence. The Respondent was granted permission to be represented by Mr Craig Joy of Craig Joy Workplace Consulting.

Background

Mr Phillips commenced employment with the Respondent on 21 February 2024 as a plumber. The Respondent is a labour…

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 Dean Phillips v LMP Project Services

Details

AGLC: Dean Phillips v LMP Project Services [2025] FWC 691
Case: [2025] FWC 691
Decision Date: 10 MARCH 2025

CaseChat Overview and Summary

Dean Phillips applied to the Fair Work Commission (FWC) for an unfair dismissal remedy, alleging he was dismissed by LMP Project Services Pty Ltd on 13 November 2024 and that his dismissal was harsh, unjust, or unreasonable. The application was lodged on 5 December 2024, one day beyond the 21-day time limit, and Mr Phillips sought an extension of time to make the application. The Commission convened a hearing to determine whether there were exceptional circumstances that warranted an extension of time.

The primary issue before the Commission was whether there were exceptional circumstances under section 394(3) of the Fair Work Act 2009 that justified extending the time for Mr Phillips to lodge his unfair dismissal application. The Commission needed to consider the reason for the delay, whether Mr Phillips became aware of the dismissal after it had taken effect, any action he took to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Mr Phillips and other persons in a similar position.

The Commission found that Mr Phillips had a computer available to him and accessed the Commission's website during the 21-day period. Although Mr Phillips experienced discomfort due to a workplace injury, he had the capacity to make the application within the time limit. The reasons provided for the delay in lodging the application were not considered to be exceptional. Mr Phillips became aware of the dismissal on the day it took effect, and he did not take any action to dispute the dismissal. The merits of Mr Phillips' application were neutral, and the fairness between Mr Phillips and other persons in a similar position was also neutral. The Commission concluded that the circumstances were not exceptional, and there was no basis to allow an extension of time.

The Commission dismissed Mr Phillips' application for an extension of time and the unfair dismissal application. An order will be issued with this decision.

Orders