Reilly Johnson v Insight FTS Pty. Ltd - [2025] FWC 682

[2025] FWC 682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Reilly Johnson
v

Insight FTS Pty. Ltd.

(U2025/1067)

DEPUTY PRESIDENT CROSS

SYDNEY, 10 MARCH 2025

Application for an unfair dismissal remedy

On 31 January 2025, Mr Reilly Johnson (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Insight FTS Pty. Ltd. (the Respondent) on 25 August 2020. His dismissal took effect on 9 January 2025, although there is an issue as to whether he was notified of his dismissal on that date or alternatively on 13 January 2025.

Unfair Dismissal applications must be made within twenty-one (21) days after a dismissal took effect or in such further time as the Fair Work Commission (the Commission) may allow. Taking as the point of calculation the date when the dismissal took effect being 9 January 2025, an application for a remedy should have been lodged by 30 January 2025. The Application would therefore have been lodged outside of the time prescribed, and one (1) day after the last day on which such an application could have been made.

On 16 July 2024, I issued the following Directions:

[1] This matter is listed for Hearing before Deputy President Cross at 10AM on 7 March 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).
[2] By no later than 4:00PM on 18 February 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
·The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.

[3] By no later than 4:00PM on 25 February 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[4] By no later than 4:00PM on 4 March 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.
Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

The parties complied with the Directions for the filing of evidence. In particular:

(a) On 17 February 2025, the Applicant filed a Statement; and
(b) On 25 February 2025, the Respondent filed Statements from Ms Erina Gatsos (Roster Supervisor) and Mr Ben Taber (Chief…

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 682
Decision Date: 10 MARCH 2025

CaseChat Overview and Summary

The case of Reilly Johnson v Insight FTS Pty. Ltd. involved a claim by Reilly Johnson, the Applicant, for an unfair dismissal remedy against Insight FTS Pty. Ltd., the Respondent. Johnson, who had been employed as a telesales fundraising agent from 25 August 2020 until 24 December 2024, alleged his dismissal on 9 January 2025 was unfair. The Applicant lodged his application for an unfair dismissal remedy on 31 January 2025, one day beyond the statutory 21-day limit. The primary legal issue before the Fair Work Commission was whether the Commission should grant an extension of time for the Applicant to lodge his unfair dismissal claim. Under section 394(3) of the Fair Work Act 2009, the Commission may allow an extension if it is satisfied there are exceptional circumstances, considering factors such as the reason for the delay, the Applicant's awareness of the dismissal, any action taken to dispute the dismissal, and the merits of the application.

In its reasoning, the Commission noted that the dismissal took effect on 9 January 2025 when the Applicant received the Termination Email. The Applicant argued the delay in lodging the application was due to the Termination Email landing in his junk mail folder, and he did not become aware of his dismissal until 13 January 2025. However, the Commission found that the Applicant's inaction for 17 days after becoming aware of the dismissal significantly impacted the assessment of exceptional circumstances. The Commission concluded that the Applicant failed to provide an acceptable explanation for the delay and that the overall circumstances did not demonstrate exceptional circumstances. Consequently, the Application for an extension of time was dismissed.

Orders