Fraser Macaulay v Sydney Trains - [2023] FWC 413

[2023] FWC 413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Fraser Macaulay
v

Sydney Trains

(U2022/11993)

COMMISSIONER PLATT

ADELAIDE, 20 FEBRUARY 2023

Application for an unfair dismissal remedy – request for an extension of time – application dismissed.

Introduction

The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

This decision concerns whether I should exercise my discretion to allow Mr Fraser Macaulay a further period for his unfair dismissal application (Application) to be made against Sydney Trains (the Respondent).

Background

Mr Macaulay has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Coles which his form F2 Unfair Dismissal Application advised took effect on 13 December 2022.

The application was lodged on 19 December 2022.

On 13 January 2023, Sydney Trains lodged a form F3 Employer Response which they contended that the dismissal occurred on 26 October 2022 and therefore objected to the application on the basis that the application was lodged out of time, and that Mr Macaulay had not served the minimum employment period. This decision only deals with the minimum employment period objection to the extent that it is relevant to the extension of time issue.

On 24 January 2023, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 16 February 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties.

The Applicant submitted materials in support of his position on the extension of time issue on 31 January 2023.

The Respondent filed written submissions and witness statements in relation to the extension of time issue on 7 February 2023.

At the request of the parties, leave was granted for both parties to file submissions in reply.

Hearing

A hearing was conducted by way of telephone conference on 16 February 2023. A sound file record of the telephone conference was kept. Ms Helen Bellette of the Australian Rail, Tram and Bus Industry Union (RTBU) represented Mr Macaulay at the hearing, whilst Ms Sally Moten (of counsel) represented the Respondent. Ms Moten was granted permission to represent the Respondent, unopposed, under s.596(2)(a) of the Act, on the basis that representation would ensure the matter was dealt with more efficiently, given the relative complexity of the matter.

Prior to the hearing, the parties indicated that they did not seek to challenge the written evidence of any of the witnesses. Accordingly, I accepted each of the witness statements, giving appropriate weight to all evidence after an assessment of its character (e.g. hearsay, opinion etc.) and its relevance.

Mr Macaulay’s position is summarised as…

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 Fraser Macaulay v Sydney Trains

Details

AGLC: Fraser Macaulay v Sydney Trains [2023] FWC 413
Case: [2023] FWC 413
Decision Date: 20 FEBRUARY 2023

CaseChat Overview and Summary

Fraser Macaulay has applied to the Fair Work Commission (FWC) for a remedy in relation to his dismissal by Sydney Trains. Mr Macaulay lodged his unfair dismissal application on 19 December 2022. Sydney Trains contends that Mr Macaulay's dismissal took effect on 26 October 2022 and that his application is out of time. The Commission was required to consider whether there are exceptional circumstances warranting an extension of time for Mr Macaulay to lodge his unfair dismissal application. Having regard to all the relevant factors, the Commission determined that there were no exceptional circumstances warranting an extension of time for Mr Macaulay to lodge his unfair dismissal application. The application was dismissed.

The Fair Work Act 2009 (Cth) provides that an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect. The Fair Work Commission may allow a further period for the application to be made in exceptional circumstances. The key issue in this matter is whether there were exceptional circumstances warranting an extension of time for Mr Macaulay to lodge his unfair dismissal application. The Commission considered the six criteria set out in s.394(3) of the Act in determining whether to grant an extension of time. Having regard to all the relevant factors, the Commission was not persuaded that there were exceptional circumstances warranting an extension of time. The application was dismissed.

Orders