Peter Clark v The Trustee for Pausco Trust - [2025] FWC 901

[2025] FWC 901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Clark
v

The Trustee For Pausco Trust

(U2025/383)

COMMISSIONER ALLISON

MELBOURNE, 31 MARCH 2025

Application for an unfair dismissal remedy – date of dismissal – is application made within time – is an extension of time application required

This decision relates to an unfair dismissal application made by Mr Peter Clark against The Trustee for Pausco Trust (Pausco Trust).

At 7:39PM on Friday 20 December 2024, Pausco Trust emailed Mr Clark notifying him that his employment had been terminated effective from that day. Mr Clark did not see the email until the following day, Saturday 21 December 2024. Mr Clark filed an unfair dismissal application on 11 January 2025.

An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this timeframe, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,^{^[2]} and the Commission chooses to exercise its discretion under s.394(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the period for the application.

If Mr Clark’s dismissal took effect from Friday 20 December 2024, his unfair dismissal application is one day out of time. On the other hand, if Mr Clark’s dismissal took effect from Saturday 21 December 2024, his application is made within time.

This decision considers whether Mr Clark’s unfair dismissal application against Pausco Trust was made within time, and if not, whether exceptional circumstances exist that warrant the Commission extending the period for Mr Clark’s unfair dismissal application.[3]

Relevant Background

For the purposes of providing background and context to this decision I have included a summary of key events based on uncontested evidence, unless otherwise stated. Where findings of contested points are required, they will be made later in the decision.

Mr Clark is a truck driver who has been working in the transport industry since 1983.[4]

Mr Clark was engaged by Pausco Trust on 8 January 2024.

On 9 July 2024 Mr Clark was directed to wash trucks. The parties are in dispute regarding whether Mr Clark performed this duty or not, and whether there were occupational health and safety issues relating to the washing of trucks.

On 10 July 2024 Mr Clark was required to attend a disciplinary meeting regarding his alleged failure to wash trucks. Before attending the meeting Mr Clark went off on sick leave.

Mr Clark remained on sick leave until December 2024. In early December, Mr Clark provided Pausco Trust with a medical certificate clearing him for duties from 10 December 2024.

On 17 December 2024 Mr Paul Scott, Director Pausco Trust wrote an email to Mr Clark[5] that relevantly included the following information:

-Based on the medical clearance, Pausco Trust was prepared to allow Mr Clark to return to work.
-Mr Clark was required to return…

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 901
Decision Date: 31 MARCH 2025

CaseChat Overview and Summary

In this matter, Mr. Peter Clark brought an unfair dismissal claim against The Trustee for Pausco Trust, alleging wrongful termination of his employment. The central dispute was the timing of the dismissal and whether Mr. Clark's application was lodged within the requisite 21-day period as stipulated by the Fair Work Act 2009. The case was heard by Commissioner Allison at the Fair Work Commission.

The primary legal issues for the court to resolve were: (1) determining the effective date of Mr. Clark's dismissal, and (2) whether Mr. Clark's application for unfair dismissal was made within the statutory time frame, or if exceptional circumstances warranted an extension of this period. The crux of the matter hinged on whether Mr. Clark had a reasonable opportunity to become aware of the dismissal when the termination email was sent at 7:39 PM on a Friday evening.

The Commission examined the circumstances surrounding the dismissal to ascertain the effective date. The Court relied on previous Full Bench decisions, particularly Ayub v NSW Trains, which established that an employee must have a reasonable opportunity to become aware of the dismissal for it to take effect. The Commission found that Mr. Clark did not have such an opportunity as he was not in the habit of checking his email outside of work hours and had no prior indication that a decision would be made on the Friday evening. The email was sent outside of his regular working hours, and he had been off work for a significant period. Therefore, the dismissal took effect on the day Mr. Clark became aware of it, which was Saturday 21 December 2024. Consequently, his application, lodged on 11 January 2025, was within the 21-day timeframe.

The decision concluded that since the application was made within the statutory period, the Commission did not need to consider whether exceptional circumstances warranted an extension of time. However, the Commissioner noted that such circumstances likely existed, considering Mr. Clark's reasonable belief about the date of his termination and his prompt action upon realizing the error. The matter will proceed to a merits hearing.

Orders