Patrick Madden v Peter Rowland Group - [2024] FWC 1127

[2024] FWC 1127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Patrick Madden
v

Peter Rowland Group

(U2024/2753)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 1 MAY 2024

Application for an unfair dismissal remedy – extension of time application – exceptional circumstances not found - application dismissed.

Introduction

On 8 March 2024, Mr Patrick Madden made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent, although there is some uncertainty as to whether the dismissal occurred on 14 or 15 February 2024. The Applicant contends that the “effective date of the Applicant’s dismissal is 15 February 2024”.[1] However, as I outline below, I find that the Applicant was dismissed on 14 February 2024.

Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).

The period of 21 days ended at midnight on 6 March 2024. The application was therefore filed two days outside the 21-day period.

For the application to proceed, Mr Madden requires the Commission grant a further period of time within which to bring his application.

The question of whether to grant additional time was dealt with at a hearing on 24 April 2024, at which the Applicant gave evidence in support of his application and was granted permission to be legally represented.

Extension of time

Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2]

The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[3]

In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
·   the reason for the delay,
·   whether the person first became aware of the dismissal after it had taken effect,
·   any action taken by the person to dispute the dismissal,
·   prejudice to the employer (including prejudice caused by the delay),
·   the merits of the application, and
·   fairness as between the person and other persons in a similar position.

In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.

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.[4]

Relevant factors

Reason for delay

The Act does not specify what reason for delay might justify 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…

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: [2024] FWC 1127
Decision Date: 1 MAY 2024

CaseChat Overview and Summary

Patrick Madden brought an application to the Fair Work Commission for an unfair dismissal remedy, contending that his dismissal by the Peter Rowland Group was unfair. The Commission was required to determine whether the application was made within the requisite time period and, if not, whether there were exceptional circumstances that justified an extension of time. Deputy President O’Neill found that the application was made two days outside the 21-day period prescribed by section 394(2) of the Fair Work Act 2009 (Cth). For the application to proceed, the Applicant needed the Commission to grant a further period of time within which to bring his application. The Deputy President found that there were no exceptional circumstances to justify an extension of time. The Applicant had been dismissed on 14 February 2024, but did not file his application until 8 March 2024. He had not provided an acceptable reason for the delay in making the application. The Applicant had been aware of the dismissal when it occurred and had the full 21-day period within which to lodge the application. The Applicant had not taken any steps, beyond lodging the application, to dispute his dismissal. There was no evidence of any prejudice to the employer. The merits of the application were neutral as the Commission should not make factual findings on contested issues at this stage of the proceedings. The absence of an acceptable reason for the delay and that the Applicant had the entire 21-day period in which to make an application weighed against a finding of exceptional circumstances. The application was dismissed. An order to that effect will be issued separately.

Orders