Jesse Dawson v The trustee for the J&A Cahill Family Trust
[2023] FWC 2833
•27 OCTOBER 2023
| [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
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