Logan Marshall v Flamestop Corporate Services Pty Ltd - [2022] FWC 652

[2022] FWC 652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Logan Marshall
v

Flamestop Corporate Services Pty Ltd

(C2021/6947)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 24 MARCH 2022

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

This decision concerns an application by Mr Logan Marshall under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

It is uncontested that Mr Marshall’s employment with the Respondent ended on 11 August 2021. The GP Application was lodged on 11 October 2021. The period of 21 days ended at midnight on 1 September 2021 and the GP Application was therefore lodged 40 days out of time. Mr Marshall seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.

On 10 March 2022 I conducted the proceedings by way of determinative conference by telephone. Mr Scott Dickson appeared on behalf of Mr Marshall. Mr Dickson is a family friend of Mr Marshall. Mr Marshall gave evidence on his own behalf. Ms Brooke Gilmour, Group Financial Officer of the Respondent, appeared on behalf of the Respondent.

Background

The Respondent is a manufacturer and wholesaler of fire equipment. Mr Marshall was employed by the Respondent in the role of Warehouse Assistant from 31 May 2021 until 11 August 2021. Mr Marshall is 19 years old and the position with the Respondent was his first employment.

On 4 September 2021 Mr Marshall lodged an application for the Commission to deal with an unlawful termination dispute pursuant to section 773 of the Act (Unlawful Termination Application). On 10 October 2021 Mr Marshall discontinued the Unlawful Termination Application. As already set out, Mr Marshall lodged the GP Application on 11 October 2021.

Consideration

The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[1]

The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[2] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[3]

Under section 366(2) of the Act, the Commission may allow a further period of…

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 Logan Marshall v Flamestop Corporate Services Pty Ltd

Details

AGLC: Logan Marshall v Flamestop Corporate Services Pty Ltd [2022] FWC 652
Case: [2022] FWC 652
Decision Date

CaseChat Overview and Summary

In this matter, Mr Logan Marshall sought an extension of time in which to lodge a general protections application under section 365 of the Fair Work Act 2009 (Act) following the termination of his employment with Flamestop Corporate Services Pty Ltd. The Deputy President found that the application was not made within the requisite time and that there were no exceptional circumstances justifying an extension of time. Mr Marshall had argued that he was confused about the different types of applications available, that he had suffered from anxiety and depression following his dismissal, and that he had made a mistake in lodging an unlawful termination application. The Deputy President found that none of these circumstances were exceptional and that Mr Marshall had not acted with due diligence in lodging the application within the requisite time. The Deputy President also noted that the merits of Mr Marshall's application were neutral and that there was no evidence of prejudice to the employer. Accordingly, the application for an extension of time was dismissed.

The final orders of the Deputy President were that Mr Marshall's application for an extension of time be dismissed and that the general protections application be dismissed for being out of time. The Deputy President also ordered that each party bear their own costs of the application.

Orders