REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Joshua Tomac
v
River Road Mechanical Pty Ltd
(C2021/2913)

DEPUTY PRESIDENT BOYCE

SYDNEY, 13 AUGUST 2021

Application to deal with contraventions involving dismissal – request for extension of time to file application outside of 21-day time period – no exceptional circumstances – request for extension of time refused - application dismissed.

Introduction

[1] This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

[2] On 22 May 2021, Mr Joshua Tomac (Applicant) filed an application concerning general protections involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by River Road Mechanical Pty Ltd (Respondent) for making a Workers’ Compensation Claim in contravention of Part 3-1 of the Act.

[3] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to “exceptional circumstances (s.366(2) of the Act).

[4] There is no question that the Applicant was dismissed from his employment by the Respondent. However, the parties are in dispute as to the date of the Applicant’s dismissal. The Respondent claims that the Applicant was dismissed on 23 March 2021, whilst the Applicant says that the first time he became aware of his dismissal was via a text message from Mr Mark Eastwell, Manager of the Respondent, on 28 April 2021.

[5] Given that the Applicant filed his Application on 22 May 2021, it has been filed outside of the 21-day time limit (i.e. no matter whether one takes the date of 23 March 2021, or the date of 28 April 2021).

[6] At the hearing, the Applicant appeared for himself, and Mr Eastwell, appeared for the Respondent.

Date of Dismissal

[7] Commencing at 2.00pm on 28 April 2021, the Applicant and Mr Eastwell had the following text message exchange:

Applicant: “If I am no longer employed by you, can you please email me my separation certificate, thank you? Or can we have a talk about what's happening as I haven’t heard anything from you regarding my employment.”

Mr Eastwell: “You committed fraud regarding WorkCover, which is also the same as stealing from me, which means no job, as I did say this to you.”

Applicant: “I'm sorry, but I have not committed fraud in any way. I injured myself at work and that's why my doctor sent me for workers' compensation…

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: [2021] FWC 4918
Decision Date: 13 AUGUST 2021

CaseChat Overview and Summary

Joshua Tomac applied to the Fair Work Commission for an extension of time to file an application under section 529 of the Fair Work Act 2009, seeking to have contraventions involving his dismissal considered. The Fair Work Commission was required to determine whether the applicant had exceptional circumstances warranting an extension of time. The Commission held that the applicant had not demonstrated exceptional circumstances that would warrant an extension of time. The Commission concluded that the application to extend the time for filing the application was not in the interests of justice and dismissed the application.

The applicant had been dismissed and was required to file an application under section 529 of the Fair Work Act within 21 days. He did not file the application within the 21-day period and sought an extension of time. In support of his request, the applicant provided an affidavit in which he claimed that he had been unaware of his entitlement to make the application and that he had been confused about the process. The Commission found that the applicant had not demonstrated exceptional circumstances warranting an extension of time. The Commission found that the applicant had failed to take steps to understand his rights and obligations and that he had not demonstrated any confusion that could be considered exceptional. The Commission concluded that the application to extend the time for filing the application was not in the interests of justice.

Orders