Mr Peter Chambers v Broadway Homes Pty Ltd
[2025] FWC 50
•7 JANUARY 2025
| [2025] FWC 50 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 – General protections
Mr Peter Chambers
v
Broadway Homes Pty Ltd
(C2024/6235)
| COMMISSIONER SCHNEIDER | PERTH, 7 JANUARY 2025 |
General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed
Mr Peter Chambers (Mr Chambers) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Broadway Homes Pty Ltd (Broadway) in contravention of Part 3-1 of the FW Act.
Broadway has objected to the application on the ground that the application is out of time.
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 3 September 2024.
When did the dismissal take effect?
There is some minor dispute in relation to the date of dismissal, however the parties agree that the Mr Chamber’s employment had ended by 14 June 2021 at the latest.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect at the latest on 14 June 2021. The final day of the 21 day period was therefore 5 July 2021, and ended at midnight on that day. The application was made on 3 September 2024. The application was therefore, made approximately 1156 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 5 July 2021. The delay is the period commencing immediately after that time until 3 September 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions and evidence
Mr Chambers submitted that the delay was for the following reasons:
·He previously filed an application on 1 July 2021 (C2021/3763) which he discontinued on 21 October 2022 following the parties reaching a settlement agreement.
·Broadway failed to fulfil the terms of the agreed settlement in full as agreed between the parties.
·Mr Chambers was re-employed by Broadway between January 2023 and June 2023.
·Following his employment ending again in June 2023, between June 2023 until February 2024, he was in contact with the Commission and made attempts to revive his initial application (C2021/3763), however this was not possible as it had been discontinued.
·Broadway made fraudulent misrepresentations to entice Mr Chambers into discontinuing his initial application.
·From his initial termination in June 2021, Mr Chambers had taken action to dispute his dismissal.
·By not providing an extension of time, Mr Chambers will be denied the opportunity to pursue his claim, which was only discontinued following fraudulent misrepresentations from Broadway.
In relation to the reason for the delay, Broadway submitted that Mr Chambers had not provided any reasoning for an exceptional circumstance, rather Mr Chambers is attempting to relitigate his initial application filed in 2021 which Mr Chambers freely discontinued of his own free will. Broadway submits that this is not an exceptional circumstance for the purposes of the Act and the application should be dismissed.
Broadway also submits that if the Commission were to grant Mr Chambers an extension of time, the Commission would effectively be:
·Re-opening the initial application (C2021/3763);
·Un-settling a matter which has been settled for over two years; and,
·Allowing Mr Chambers to re-litigate a settled / discontinued matter.
Broadway also submitted that if the above was to occur, the Commission would be undermining the confidence that parties have when settling an agreement before the Commission that the matter is resolved with finality, and for the Commission to undermine this certainty would be contrary to the public interest.
Findings
Having regard to the above, I find that the reasons for the delay are not common and are certainly not circumstances that would occur with any frequency.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute that Mr Chambers took action to dispute his dismissal, as he lodged an application (C2021/3763) with the Commission on 1 July 2021.
What is the prejudice to the employer (including prejudice caused by the delay)?
Broadway submits that it would suffer prejudice if an extension of time were granted.
Submissions and evidence
Specifically, Broadway submits that, if an extension of time were granted, it would suffer the following prejudice:
·Mr Chambers has been previously made a payment of $500,000 in relation to an earlier application (C2021/3763).
·Broadway set up an entity, Katura so that Mr Chambers could be re-employed.
Broadway submits it has already incurred significant expense in relation to various applications and the previous settlement with Mr Chambers. Therefore, Broadway submits that further legal costs in relation to an extension of time are a further prejudice.
Mr Chambers submits that, even if the relevant facts are made out by Broadway, such prejudice is not material because Broadway is a large employer with access to commercial services and third party legal support.
Mr Chambers submits that as affidavits have previously been filed in the matter there would be no prejudice to Broadway in relation to the loss of evidence or similar.
Findings
Having regard to the matters referred to above, I find that the following prejudice would be suffered by Broadway if an extension of time were granted for the lodgment of the application, as Broadway would continue to incur legal fees as well as the time and cost of dealing with an application when the matter had previously been settled and Mr Chambers freely discontinued his application.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[6]
It is not possible to make any firm or detailed assessment of the merits. Mr Chambers has an apparent case, to which Broadway has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. I consider this to be a neutral factor.
Fairness as between the Applicant and other persons in a similar position
Mr Chambers raised concerns that if he is not granted an extension of time, he will be denied the opportunity to pursue his claim which was only discontinued based on fraudulent misrepresentations from Broadway and that an extension of time would not be unfair to other persons in a similar position. I consider this to be a neutral factor given the overall circumstances of the dispute.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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 nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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.[8]
I do not consider the circumstances behind the delay to be exceptional circumstances for the purposes of the Act. My reasons are as outlined below.
Mr Chambers alleges that Broadway made fraudulent misrepresentations to entice him into settling his previous application. In relation to this allegation, Mr Chambers discontinued his application (C2021/3763) with the Commission of his own accord after the parties reached a private settlement.
If Mr Chambers had obtained a Deed of Settlement or similar prior to discontinuing his application with the Commission, Mr Chambers could have sought the terms of the settlement to be enforced in a further jurisdiction. However, from the submissions of the parties, this did not occur.
Ultimately, Mr Chambers decided to discontinue his application before the Commission and is now unhappy with how the private settlement between the parties turned out. I do not consider this to be an exceptional circumstance that warrants an extension of time. Mr Chambers made a decision which unfortunately for him he now regrets, I do not consider this to be exceptional.
I consider that Broadway would suffer a prejudice noting the matter has been litigated previously and was discontinued by Mr Chambers following a settlement being agreed between the parties.
I accept that Mr Chambers has taken extensive action to dispute his dismissal following his initial termination in June 2021 and from the submissions, his subsequent termination in June 2023. Whilst I accept this may weigh in support of an extension of time, as I have outlined above, I am not satisfied there are exceptional circumstances to warrant an extension of time.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
If I have erred and there are in fact exceptional circumstances, I would not have exercised my discretion for an extension of time, noting that Mr Chambers discontinued his previous application before the Commission after reaching a settlement with Broadway. Furthermore, I consider that this application is an attempt to recommence proceedings before the Commission that Mr Chambers discontinued previously.
I also would not have granted an extension of time, noting that I agree with the submissions of Broadway that doing so would undermine the confidence of the general public that a discontinuance before the Commission is done so with a finality to end the dispute between the parties at the Commission.
I also accept that it would be contrary to the public interest to encourage parties to seek to relitigate matters which had previously been discontinued before the Commission as they are no longer satisfied with the outcome.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed.
COMMISSIONER
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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