Gary Grist v Raiser Pacific Pty. Ltd - [2024] FWC 900

[2024] FWC 900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gary Grist
v

Raiser Pacific Pty. Ltd

(U2024/1958)

COMMISSIONER SCHNEIDER

PERTH, 9 APRIL 2024

Application for an unfair dismissal remedy– circumstances not exceptional – application dismissed.

Mr Gary Grist (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Raiser Pacific Pty. Ltd (the Respondent).

The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe.

The Respondent has a further jurisdictional objection to the application, being that the Applicant was not dismissed by the Respondent.

The Respondent, in their submissions, highlighted that any reference to a date of termination, was not a dismissal as such, rather the Respondent deactivating the Applicant’s driver account rather than a dismissal.

Before considering the merits of the application or the objection regarding the existence of a dismissal, the Commission must be satisfied that the application was not made out of time.

A Hearing regarding the out of time issue was held. At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not present any witnesses.

Dismissal date

Relevant Law

Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“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.
…
(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)…”

As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

The parties are in dispute about when the dismissal took effect.

Submissions and Evidence

The Commission received an application Form F2 from the Applicant on 22 February 2024. The Applicant, in his application, states that his employment with the Respondent ended on 9 May 2023.

The Applicant, in his submissions to the Commission, stated:

“after numerous messages and letters to UBER their final notice to deactivate my account permanently was not until 29 January 2024”.

The Respondent submits that the dismissal in fact took effect on 11 May 2023, when the Respondent communicated to the Applicant that his Uber Driver Partner account was permanently deactivated.

The Respondent provided a copy of communication between the Applicant and the Respondent, from 11 May 2023, which states:

“We have received a report…

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: [2024] FWC 900
Decision Date: 9 APRIL 2024

CaseChat Overview and Summary

In the matter of Gary Grist v Raiser Pacific Pty. Ltd, the Fair Work Commission was tasked with determining whether the applicant, Gary Grist, was entitled to an unfair dismissal remedy. Grist had applied for such a remedy under section 394 of the Fair Work Act 2009, claiming he was unfairly dismissed by Raiser Pacific Pty. Ltd, who he worked for as an Uber driver. The Respondent argued that the application was made outside the statutory timeframe and further contended that Grist was not dismissed by them but rather had his driver account deactivated. The Commission first had to ascertain if the application was lodged within the requisite 21-day period and, if not, whether exceptional circumstances existed to warrant an extension.

The legal issues before the Commission encompassed the timeliness of the application and the existence of exceptional circumstances that would justify an extension of the filing period. The Commission found that the dismissal took effect on 11 May 2023, and therefore, the application filed on 22 February 2024 was well beyond the 21-day statutory period. The Commission then assessed whether the delay was due to exceptional circumstances as outlined in section 394(3) of the Act. This involved examining the reason for the delay, whether Grist became aware of the dismissal post-effect, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness between Grist and others in similar positions.

Upon reviewing the evidence, the Commission concluded that there were no exceptional circumstances present. Grist's primary reason for the delay was his anticipation of resolving his Driver Authority issues and pending charges before filing the application, which was not deemed exceptional. Moreover, although Grist was aware of the deactivation of his account, he did not take formal action to dispute the dismissal in a timely manner. The merits of the application were also considered weak given the jurisdictional objections raised by the Respondent. The Commission ultimately found that the application was not filed within the statutory period and that there were no exceptional circumstances to warrant an extension. Consequently, the application for an unfair dismissal remedy was dismissed.

Orders