Peter Walker v S Smith Builders Pty Ltd Summary

[2024] FWC 2206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Walker
v

S Smith Builders Pty Ltd

(U2024/7627)

COMMISSIONER TRAN

MELBOURNE, 19 AUGUST 2024

Application for an unfair dismissal remedy – extension of time – extension of time not granted.

On 2 July 2024, Peter Walker (the Applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act (the Act).

Mr Walker worked for the S Smith Builders Pty Ltd (the Respondent) as a carpenter. But the Respondent says that they never employed Mr Walker as they had engaged him on an independent contractor agreement since 2022. I make no findings about whether Mr Walker was an employee. Mr Walker says that he was unfairly and wrongly dismissed by the Respondent on 5 June 2024, when Mr Steven Quint, construction manager for the Respondent, told Mr Walker during a brief telephone call that he could not have Mr Walker on the job anymore and there was no other work for him.

Therefore, Mr Walker’s application on 2 July 2024 was 6 days after the 21-day time limit under s 394(2)(a), which would have ended at midnight on Wednesday 26 June 2024.

Before considering whether a dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period under s 394. I have considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act. None of the factors weigh in favour of a finding of exceptional circumstances, and some factors weigh against granting an extension of time. So, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My reasons follow.

Relevant Law

Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made:

“(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”

Section 394(3) of the Act provides that

“[t]he FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)    the reason for the delay; and
(b)    whether the person first became aware of the dismissal after it had taken effect; and
(c)    any action taken by the person to dispute the dismissal; and
(d)    prejudice to the employer (including prejudice caused by the delay); and
(e)    the merits of the application; and
(f)     fairness as between the person and other persons in a similar position.”

The legislation is clear that the power to extend time is discretionary but may only be exercised if first satisfied that there are exceptional circumstances. The conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[1]

Factors to take into account

394(3)(a) – the reason for the delay

Mr Walker’s evidence is that he sought advice on 13 June 2024, but despite this did not lodge his application until 2 July 2024. Mr Walker says that he was not aware of the time limit but does not provide any other reasons for the delay in lodging his application.

This factor does not assist Mr Walker to show exceptional circumstance, as ignorance of the time limit is not, of itself, an exceptional circumstance[2] and Mr Walker has offered no other reasons for the delay.

394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

This factor does not assist Mr Walker to show exceptional circumstances because the evidence is clear that Mr Walker was aware of his dismissal at the time it took effect. Mr Walker spoke with Mr Quint about the termination, sent him a text message and arranged to collect his tools from the worksite on Friday, 7 June 2024.

394(3)(c) – any action taken by the person to dispute the dismissal

This factor does not assist Mr Walker to show exceptional circumstances because he did not take any action to challenge his termination. Rather, the Respondent gave unchallenged evidence, which I accept, that Mr Walker accepted its termination of his contract when he sent a text message to Mr Steve Quint, construction manager, on 6 June 2024 that said:

“Hey Steve.
I won’t charge for yesterday and today.
Thanks for employing me.”

394(3)(d) – prejudice to the employer (including prejudice caused by the delay)

Mr Walker relies solely on the Respondent not being prejudiced by an application that was 6 days late in seeking an extension. The Respondent on the other hand says that it will be prejudiced by allowing the late application as it is a small business and would suffer economic hardship in defending the claim. Aside from assertions made in submissions, the Respondent did not provide any evidence of how it would suffer economic hardship. A delay of 6 days is a brief period. I conclude that this factor does not weigh in favour or against exceptional circumstances.

394(3)(e) – the merits of the application

The Respondent argues that the merits of Mr Walker’s application are not strong because they engaged him as an independent contractor and not an employee. Mr Walker did not have legal representation but did challenge the characterisation of his engagement. It is clear too from his text message to Mr Quint referred to above that he considered he was employed. The question of whether Mr Walker was an employee is a question of law. I did not hear detailed arguments and evidence about this. So, I am of the view that this factor does not weigh in favour or against exceptional circumstances.

394(3)(f) – fairness as between the person and other persons in a similar position

This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[3]

This factor weights against Mr Walker, as I am of the view that if I were to grant an extension of time to Mr Walker, this would be unfair to other applicants who have not been allowed further time when they have not shown exceptional circumstances.

Conclusion and Order

Having regard to all the matters in s 394(3) of the FW Act, I do not find that there are exceptional circumstances such as to allow me to exercise a discretion to extend time. Mr Walker did not provide any reasons for the delay and no other factor persuades me to find exceptional circumstances.

I therefore dismiss Mr Walker’s application for an unfair dismissal remedy.

COMMISSIONER

Appearances:

P Walker for himself.
B Field of Irwell Law Pty Ltd for the Respondent.

Hearing details:

2024
14 August
Via Microsoft Teams

[1] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].

[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

[3] Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963 at [41].

Printed by authority of the Commonwealth Government Printer

Peter Walker, who claims to have been employed by S Smith Builders Pty Ltd as a carpenter, applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act. S Smith Builders Pty Ltd denies that Mr Walker was their employee, asserting that he was engaged as an independent contractor. The central dispute is whether Mr Walker was unfairly dismissed by the company, and if so, whether the application for unfair dismissal was made within the required 21-day time limit. Mr Walker's application was submitted six days beyond the statutory deadline, prompting the issue of whether an extension of time should be granted.

The primary legal issue before the Commission was whether there were exceptional circumstances to justify extending the time limit for Mr Walker to lodge his unfair dismissal application. This decision hinged on assessing various factors outlined in section 394(3) of the Act. The Commission examined the reasons for the delay, Mr Walker's awareness of the dismissal, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness to other similar applicants. The Commission concluded that none of these factors indicated exceptional circumstances warranting an extension, primarily due to Mr Walker's failure to provide any justification for the delay and the absence of significant prejudice to the employer.

The Commission meticulously evaluated each factor. Mr Walker did not provide any reason for the delay beyond seeking advice, which was insufficient to constitute exceptional circumstances. He was also aware of the dismissal at the time it occurred, as evidenced by his communication with the construction manager. Mr Walker took no action to dispute the dismissal, further undermining his case for an extension. Although the employer claimed potential economic hardship, this assertion lacked supporting evidence. The merits of Mr Walker's application were also neutral, as the question of his employment status was not fully explored in the proceedings. Finally, granting an extension would be unfair to other applicants who have not been allowed additional time under similar circumstances.

The Commission concluded that no exceptional circumstances existed to warrant an extension of the time limit for Mr Walker's application. Consequently, the application for an unfair dismissal remedy was dismissed. The Commission's decision was based on the lack of justification for the delay, the absence of prejudice to the employer, and the need to maintain fairness and consistency in the application of the law.

Peter Walker v S Smith Builders Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established