Mr Peter Chambers v Broadway Homes Pty Ltd - [2025] FWC 50

[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…

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: [2025] FWC 50
Decision Date: 7 JANUARY 2025

CaseChat Overview and Summary

Mr Peter Chambers filed an application under section 365 of the Fair Work Act 2009, alleging that he was dismissed from his employment with Broadway Homes Pty Ltd in contravention of the Act. Broadway Homes objected on the basis that the application was out of time. The Fair Work Commission, presided over by Commissioner Schneider, was required to determine whether the application was made within the prescribed time limit and, if not, whether there were exceptional circumstances to warrant an extension of time. The Commission found that the application was made approximately 1156 days after the dismissal took effect, well beyond the 21-day statutory period. The Commission then considered whether exceptional circumstances existed to allow for the extension of time. The applicant argued that the delay was due to the employer's failure to fulfill a settlement agreement, among other reasons, and that the delay was not his fault. However, the Commission found that the reasons for the delay, while not common, did not constitute exceptional circumstances. The Commission also found that the employer would suffer prejudice if the application was allowed, and that it was not possible to assess the merits of the application due to the contested facts. The Commission concluded that it was not satisfied that there were exceptional circumstances to warrant an extension of time, and therefore dismissed the application.

The decision of the Fair Work Commission highlights the importance of timely filing of applications under the Fair Work Act. While the Commission acknowledged that the delay was not typical, it found that the reasons for the delay did not amount to exceptional circumstances. The decision also underscores the importance of settlements being made with finality and the potential consequences for parties who seek to relitigate settled matters. The Commission's decision to dismiss the application due to the lack of exceptional circumstances serves as a reminder to applicants of the need to adhere to statutory time limits and to parties of the importance of ensuring that settlements are properly documented and enforced.

Orders