Mr Gregory Merrick v The Trustee for Murrakei Family Trust

[2025] FWC 179

[2025] FWC 179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Gregory Merrick
v

The Trustee for Murrakei Family Trust

(U2024/15748)

COMMISSIONER LEE MELBOURNE, 22 JANUARY 2025

Application for an unfair dismissal remedy

Introduction

1. Mr Gregory Merrick (the Applicant) commenced employment with The Trustee for Murrakei Family Trust (the Respondent), on or about 12 December 2023.  He was employed in the position of a casual maintenance worker.

1. The Applicant submits that he was terminated by the Respondent by way of an SMS message on 29 of November 2024 which, advised him he did not have any upcoming shifts. The Respondent disputes that there was a termination at the initiative of the employer.

1. The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 28 December 2025.

1. There was a determinative conference on 20 January 2025. The Applicant appeared with his wife Ms Laura Merrick and Ms Kendall Walboom, Safety Advisor, and Mr Gavin Clark, Director, appeared for the Respondent.

Application was filed outside the statutory timeframe 

1. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

1. As mentioned above, the Respondent asserts that there was no termination at the initiative of the employer. For the purposes of determining the extension of time, I will proceed on the assumption, without so determining, that there was a termination at the employer’s initiative on the date asserted by the Applicant.

1. The Applicant asserted in his Form F2 that he was terminated on 2 December 2024. During the hearing his evidence was that he included that date because that was the date the employer included in his separation certificate.

1. The key evidence in this matter is the SMS on 29 November 2024 sent by the Respondent to the Applicant and his wife (who also worked for the Respondent) which said, “I am writing you to advise that unfortunately we do not have any upcoming shifts. We would like to thank you both for your hard work on the farm. If any shifts become available in the near future, we will be sure to reach out to you both. Thank you again! If you require any further information, please don’t hesitate to reach out. Wishing you all the best. Regards, Kendall.”[1]

1. The Applicant responded the same day by SMS saying, “Sacked by text message?”[2], as well as providing reasons for his absence. The employer did not respond to that message.

1. Against that factual background the dismissal, if it occurred, was on 29 November 2024. The Applicant accepted during the hearing that the dismissal, if it occurred, took effect on the 29 November 2024.

1. Based on a termination date taking effect on 29 November 2024, the application for a remedy should have been lodged by no later than 20 December 2024.

1. The application was therefore lodged outside of the time prescribed. The application was made in effect, 8 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

1. Before dealing with the evidentiary matters, I will set out the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

1. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

   ·   the reason for the delay,

   ·   whether the Applicant first became aware of the dismissal after the date it took effect,

   ·   any action taken by the Applicant to dispute the dismissal,

   ·   prejudice to the Respondent including prejudice caused by the delay,

   ·   the merits of the application; and

   ·   fairness as between the Applicant and other persons in a similar position.

2. Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[3]

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[4] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

1. I now consider these matters in the context of the Application.

a) Reason for the delay

1. The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]

1. The Applicant is 64 years of age. His evidence is that on 28 November 2024 he had a severe fall. As set out earlier he was allegedly dismissed on 29 November 2024. On 5 December, 6 days after he was allegedly terminated, he underwent surgery to re-attach a ruptured tricep tendon.

1. The Applicant’s evidence was that he was prescribed opioid based pain killers, was sleeping 15 hours per day and he suffers from poor mental health. The Applicant has provided medical evidence in support of his reasons for delay. There is a medical certificate provided indicating an inability to work or study from 28 November 2024 to 15 January 2025. Other medical evidence shows that the Applicant did indeed suffer the injury he speaks of and underwent surgery to deal with it.  The Applicant’s evidence is that against this background he lodged the application as soon as he was capable of doing so.

1. I accept the evidence of the Applicant, and I am satisfied that he has provided sufficient evidence of an acceptable reason for the delay. In the circumstances, I am satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs in favour the Applicant in this case.

b) Whether Applicant first became aware of the dismissal after the date it took effect

1. Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 29 November 2024 that there were no upcoming shifts for him and his wife. He understood that SMS to mean that he was dismissed.

1. While there is a contest as to whether there was a dismissal, if it occurred the Applicant was aware of it on 29 November. I note there was some confusion given the separation certificate was dated 2 December. However, the Applicant was clear as to the date of termination.

1. In the circumstances, that is a matter that is neutral.

c) Action taken by the Applicant to dispute his dismissal

1. Turning next to the question of the action taken by the Applicant to dispute his dismissal. The evidence was that the Applicant clearly understood the text message of 29 November to indicate his employment was at an end. He did provide a contest to that where he replied, “Sacked by text message?” and set out the reasons for his short absence. I am satisfied this represented a level of action to dispute and indeed question the dismissal.

1. In the circumstances, that is a matter that weighs slightly in favour of the Applicant.

d) Prejudice

1. Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

1. The Respondent made no submissions in relation to prejudice and neither did the Applicant.

1. In the circumstances, that is a matter that is neutral.

e) Merits of the application

1. As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

1. The Respondent makes a jurisdictional objection that there was no dismissal. In my opinion this is unlikely to succeed. The SMS sent on 29 November 2024 would likely be understood by the reasonable person to indicate that there was no longer any work for the Applicant and that his employment had come to an end. The message includes thanks for the work done so far by the Applicant and finally a sign off, “wishing you all the best”. When the Applicant replies, “Sacked by text message?”, the Respondent could have, if despite the wording in the SMS, termination was unintended, immediately assured the Applicant that was not the case but, they did not. A claim in the Form F3 that the Director, Mr Gavin Clark, did not respond to the text message to “avoid any conflict that could have arisen” is relevant though it is not clear why he would be expecting conflict if he contacted the Applicant to reassure him his employment was not terminated. Further, the separation certificate lists ‘shortage of work’ as the reason for separation not, ‘employee ceasing work voluntarily’. In summary, based on the limited evidence before me, the jurisdictional objection is weak. If it was found that there was a dismissal, there is no apparent valid reason for dismissal, nor any process followed to affect the dismissal. Against this background I have formed the view that the Applicant has a strong case.

1. It seems to me therefore, that his claim is, on a preliminary assessment basis, not without merit. That is not to suggest that it will succeed, but I am satisfied that there is considerable merit which would give the Applicant a justifiable reason to pursue his unfair dismissal claim.

1. In the circumstances, that is a matter that weighs in favour of the Applicant.

f) Fairness as between the Applicant and other persons in a similar position

1. As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position.  This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

1. Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

1. A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

1. As I have indicated, I am satisfied that there is an acceptable reason for the delay. This weighs in favour of the Applicant. I am also satisfied that the Applicant took some action to dispute the alleged dismissal which weighs slightly in his favour but not significantly so. I am also satisfied that the Applicant’s case has considerable merit such that this factor also weighs in the Applicant’s favour. All other factors are neutral. There are no factors weighing against the Applicant.

1. When I consider each of the matters set out in s.394(3), in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that they establish there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made.

1. As to whether I should now exercise my discretion, I see no reason it is not appropriate

to exercise my discretion, nor were any brought to my attention. Consideration of all the factors either weigh in favour of doing so or are neutral. I therefore propose to allow a further period within which this application may be made. That further period is extended to 28 December 2024.

1. Parties will receive further correspondence from my Chambers in due course regarding the further programming of the matter.

COMMISSIONER

Appearances:

Mr G Merrick, the Applicant

Ms K Walboom, for the Respondent

Hearing details:

Video using Microsoft Teams.
20 January 2025.

[1] DHB, page 5.

[2] Ibid, page 35.

[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[4] Ibid.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

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