Jesse Dawson v The trustee for the J&A Cahill Family Trust

[2023] FWC 2833

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jesse Dawson
v

The trustee for the J&A Cahill Family Trust

(U2023/9299)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 27 OCTOBER 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

Mr Jesse Dawson’s unfair dismissal application was filed on 26 September 2023, nine months after his alleged dismissal on 8 December 2022, whereas the Fair Work Act 2009 requires applications to be made within 21 days of dismissal, or such further period as the Commission allows under s 394(3) if satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f). Mr Dawson said that the reason for delay was his unawareness of the 21-day rule, and I infer from his documents that he claims poor mental health was a causative factor, however the former is not an acceptable reason, and the latter I reject because no causal link has been established, and therefore the reason for delay weighs against an extension. The following matters are neutral: Mr Dawson did not become aware of his alleged dismissal after it took effect; he took no action to dispute it; there is no prejudice to the employer; I see no matters relevant to fairness between Mr Dawson and others; finally, the claim appears to have little merit, as I have before me Mr Dawson’s message telling the employer he thinks it best for him to ‘finish up’, and his handwritten resignation, however I will treat the merits as neutral, as Mr Dawson claims he was forced to resign because of pressure to return to work after injury. Taking account of ss 394(3)(a) to (f), I am not satisfied that there are exceptional circumstances, and therefore Mr Dawson’s application is dismissed.

DEPUTY PRESIDENT

Conference details:
2023
Melbourne
27 October

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jesse Dawson brought an application against the trustee for the J&A Cahill Family Trust for unfair dismissal under the Fair Work Act 2009. Mr Dawson alleged that he was dismissed on 8 December 2022, and he filed his application for unfair dismissal on 26 September 2023. The Act requires such applications to be made within 21 days of dismissal. Mr Dawson sought an extension of time to lodge his application. The central issue for the Fair Work Commission to decide was whether the delay in lodging the application was justified by exceptional circumstances, allowing the application to proceed despite the delay.

The Commission considered the grounds for the delay, which Mr Dawson attributed to his unawareness of the 21-day rule and his poor mental health. The Commission noted that unawareness of the rule does not constitute an acceptable reason for an extension, and rejected the claim that poor mental health was a valid reason for delay as there was no established causal link. Other factors considered by the Commission, such as whether Mr Dawson became aware of the dismissal after it took effect, whether he took action to dispute it, whether there was prejudice to the employer, and whether there were relevant matters of fairness between Mr Dawson and others, were deemed neutral in this context. The merits of the application were also considered neutral, as Mr Dawson claimed he was forced to resign due to pressure to return to work after injury, but the Commission had evidence of a message from Mr Dawson suggesting he thought it best to 'finish up' and a handwritten resignation.

After considering all the factors, the Commission found that there were no exceptional circumstances warranting an extension of time for lodging the unfair dismissal application. Consequently, the application was dismissed. The Commission's decision was based on the failure to establish acceptable reasons for the delay, and the lack of exceptional circumstances under the criteria specified in the Fair Work Act 2009. The Commission concluded that the application did not meet the necessary threshold for an extension and was therefore dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established