Peter Thomas Curtis v Barwon Timber & Hardware Pty Ltd - [2024] FWC 646

[2024] FWC 646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Thomas Curtis
v

Barwon Timber & Hardware Pty Ltd

(U2024/1473)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 13 MARCH 2024

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances found – application dismissed.

Introduction – 80 days late

On 12 February 2024, Mr Curtis made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed from his role as Account Manager by the Respondent on 3 November 2023, effective immediately.

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 Respondent has raised two jurisdictional objections to the application: that the application is out of time and that the Applicant was not dismissed. This decision deals with the first objection. I will assume for that purpose, that Mr Curtis was dismissed, as he contends, on 3 November 2023.

On that basis, Mr Curtis’ application was filed 80 days after the expiry of the 21-day period at midnight on 24 November 2023.

For the application to proceed, Mr Curtis 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 6 March 2024, at which the Applicant gave evidence in support of his application.

For the reasons below, I have concluded that there are no exceptional circumstances warranting additional time being provided for the Applicant to make the application.

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”.[1]

The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[2]

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.[3]

Relevant factors

What was the reason for delay

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

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 646
Decision Date: 13 MARCH 2024

CaseChat Overview and Summary

In the case of Peter Thomas Curtis v Barwon Timber & Hardware Pty Ltd, the applicant, Mr Curtis, sought an unfair dismissal remedy claiming that he was dismissed from his position as Account Manager on 3 November 2023. The respondent, Barwon Timber & Hardware Pty Ltd, contested the application on the grounds that it was filed 80 days after the statutory 21-day period had expired, and that Mr Curtis had not actually been dismissed. The central issue before the Commission was whether exceptional circumstances existed that would justify an extension of the time within which Mr Curtis could lodge his application. The Deputy President O’Neill assessed the application based on several factors, including the reason for the delay, whether Mr Curtis took any action to dispute the dismissal, and the merits of the application.

The Deputy President found that Mr Curtis's explanation for the delay was inadequate. He was not convinced that the shock and stress he experienced following his alleged dismissal constituted an exceptional circumstance. Furthermore, Mr Curtis's engagement of legal representation on the last day of the 21-day period did not demonstrate an acceptable reason for the delay, especially since there was no clear evidence that he instructed his lawyer to file the unfair dismissal claim on that day. The Deputy President also considered that the merits of Mr Curtis's claim were weak, as there was insufficient evidence to support his assertion that he was dismissed on 3 November 2023. Actions taken by Mr Curtis after the alleged dismissal, such as taking personal leave and making a workers' compensation claim, were inconsistent with his claim that his employment had been terminated.

Consequently, the Deputy President concluded that there were no exceptional circumstances warranting an extension of time for Mr Curtis to make his application. Therefore, the application for an unfair dismissal remedy was dismissed, and Mr Curtis was not entitled to pursue the claim. The decision underscores the high threshold required to extend the statutory period for lodging an unfair dismissal application and the necessity for applicants to provide credible and timely explanations for any delay.

Orders