Matthew Guy v Jason While Trolleys Transport - [2023] FWC 145

[2023] FWC 145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Guy
v

Jason While - Trolleys Transport

(U2022/10795)

DEPUTY PRESIDENT LAKE

BRISBANE, 18 JANUARY 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

Mr Matthew Guy (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to a dismissal of his employment by Jason White – Trolleys Transport (the Respondent).

The Applicant began his employment on or around September 2019. It is uncontentious that the Respondent terminated the Applicant’s employment on 8 October 2022. The application was lodged with the Commission on 10 November 2022.

Was the application lodged within time?

Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

The Applicant lodged his application on 10 November 2022. He accepts that his application was made some eleven days outside of the 21 days required under s.394(2) of the Act.

The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

The Applicant’s submissions

The Applicant’s submissions may be summarised as follows.

The Applicant states he was not aware that there was a 21-day time limitation imposed by statute. The Applicant had contact with police following his dismissal and claims he was contacted and made a report of a workplace incident. A detective advised the Applicant to go to Mackay Community Legal Centre regarding his termination of employment. The Applicant did receive advice on his application and the 21-day time limit.

The Applicant asserts that he did not dispute his dismissal as he was going to leave anyway.

The Respondent’s submissions

The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions may be summarised as follows.

The Applicant worked for the Respondent from September 2019 to 20 January 2022. The Applicant then resigned from his role and was re-employed with the Respondent on 27 June 2022 until his dismissal on 8 October 2022.

The Applicant’s knowledge of the 21-day time limit does not qualify as exceptional.

Consideration of whether a further period should be granted

Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it…

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: [2023] FWC 145
Decision Date: 18 JANUARY 2023

CaseChat Overview and Summary

Matthew Guy (Applicant) sought relief from the Fair Work Commission (FWC) for an unfair dismissal by Jason While - Trolleys Transport (Respondent). The Applicant lodged his application outside the statutory 21-day time limit, necessitating a decision on whether the FWC should allow a further period under s.394(3) of the Fair Work Act 2009. The key legal issue was whether the circumstances of the case qualified as "exceptional" to warrant an extension of time.

The Applicant argued that he was unaware of the 21-day limitation and that he had been engaged with police following his dismissal. The Respondent contended that there were no exceptional circumstances, and that the Applicant's knowledge of the limitation did not qualify. The Court considered various factors, including the reason for the delay, whether the Applicant became aware of the dismissal after it had taken effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and other persons in a similar position. Ultimately, the Deputy President found that the Applicant had not established exceptional circumstances, and dismissed the application.

The reasoning of the Court was that the Applicant had received advice from the Mackay Legal Centre and was warned about the 21-day time limit. However, the Applicant did not provide any further reasons as to why he was late in filing his application. The Applicant's knowledge of the limitation did not qualify as exceptional, and the other factors did not weigh in favour of an extension of time. The Deputy President concluded that the application should be dismissed.

Orders