DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brentt Scott
v
Lloyd Austerberry & Co
(U2020/14991)

COMMISSIONER CIRKOVIC

MELBOURNE, 16 DECEMBER 2020

Application for an unfair dismissal remedy – application filed outside statutory time frame – no exceptional circumstances – application dismissed.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 11 December 2020.

Introduction

[2] Mr Brentt Scott (Applicant) commenced employment with Lloyd Austerberry & Co (Respondent), in or around 2014 or 2015. He was employed in the position of Farm Hand.

[3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). There is no dispute that the application was lodged on 18 November 2020.

[4] The Applicant contends that he was unfairly dismissed and the Respondent disputes that contention.

Background

[5] It is of assistance, at this juncture, to briefly set out the history of this matter.

[6] There is some dispute between the parties around whether the Applicant commenced his employment with the Respondent in 2014 or 2015. On the material before me, I am unable to make a finding in relation to this but note that the Applicant’s commencement date has no relevance to the determination of this matter.

[7] For the duration of his employment, the Applicant contends he was a “permanent casual” whose hours were “variable” but “also consistently based on Mon-Fri 8:30 to 5:30”.

[8] On 20 March 2020, Mr Graeme Austerberry of the Respondent informed the Applicant that, due to the effects of COVID-19, it was unclear when the Applicant would again be able to work. Mr Austerberry was not able to provide a time frame for when further work would be available.

[9] On 27 March 2020, Mr Austerberry sent a text message to the Applicant stating:

“Hello Brentt, due to Coronavirus and stage 3 imminent there will be no work next week. We have cancelled our crutching”

[10] On 31 March 2020, Mr Austerberry sent a text message to the Applicant stating:

“Hi Brentt, due to how serious Coronavirus has become and being at stage 3. We are only working with family members at the moment. We suggest you explore other options of employment.”

[11] On 19 October 2020, the Applicant sent a text message to Mr Austerberry stating “Hi Graeme just wondering when you gonna (sic) send me a separation certificate”. The Applicant contends he did this as “it’s a requirement for when I was preparing an unemployment claim to be ready after my last shearing shed contract finished”. 1

[12] On 21 October 2020, Mr Austerberry sent a text message to the Applicant stating “Hello Brentt,I have lodged your separation certificate with Centrelink today”.

[13] On 16 November 2020, the Applicant telephoned Centrelink who provided the details 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.

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Details

Case: [2020] FWC 6710
Decision Date: 16 DECEMBER 2020

CaseChat Overview and Summary

The applicant, Mr Brentt Scott, filed an application for an unfair dismissal remedy against his former employer, Lloyd Austerberry & Co. The application was brought before the Fair Work Commission, where the primary issue was whether the application was filed outside the statutory time frame and, if so, whether any exceptional circumstances existed that would warrant an extension. The Commission was required to determine whether the applicant's application was lodged beyond the statutory period of 21 days and, if it was, whether any exceptional circumstances existed that would justify an extension of time for filing the application.

The Commission considered the evidence provided by Mr Scott and Lloyd Austerberry & Co regarding the timeliness of the application. It was established that the application was indeed filed outside the 21-day statutory period. The Commission then examined whether there were any exceptional circumstances that would warrant an extension of time. The applicant argued that there were exceptional circumstances, including a delay caused by the respondent’s failure to provide necessary documentation and the applicant’s own medical condition. However, the Commission found that these circumstances did not sufficiently justify an extension of time, as the applicant had not acted with due diligence in pursuing the application and the medical condition did not significantly impact the ability to file the application within the statutory period.

Based on the findings, the Commission dismissed the application for an unfair dismissal remedy. It concluded that the application was not filed within the required time frame and that the exceptional circumstances presented were insufficient to warrant an extension. Consequently, the application was dismissed, and no unfair dismissal remedy was granted to the applicant.

Orders