Robert James Marshall v Camm Contracting - [2024] FWC 1171

[2024] FWC 1171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert James Marshall
v

Camm Contracting

(U2024/3385)

COMMISSIONER CIRKOVIC

MELBOURNE, 7 MAY 2024

Application for an unfair dismissal remedy – extension of time - application posted within time - delay attributable to mail redirection - exceptional circumstances – extension granted

This decision concerns an application by Mr Robert James Marshall (Applicant) for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Act).

The Applicant submits that his employment with Camm Contracting (Respondent) was terminated with effect from 28 February 2024. The Respondent submits that there was no termination at the initiative of the Employer but does not dispute that the Applicant’s employment ended with effect from 28 February 2024.

The application was received by the Fair Work Commission (Commission) on 25 March 2024. Section 394(2) of 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 Fair Work Commission (Commission) allows pursuant to s 394(3). The Application was lodged on 25 March 2024. As the Applicant’s employment ended on 28 February 2024, the last day to lodge the Application was 20 March 2024, and was therefore lodged 5 days out of time. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] 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.[2]

The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are…

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.

Continue reading Robert James Marshall v Camm Contracting

Details

AGLC: Robert James Marshall v Camm Contracting [2024] FWC 1171
Case: [2024] FWC 1171
Decision Date: 7 MAY 2024

CaseChat Overview and Summary

In the matter of Robert James Marshall v Camm Contracting, the applicant, Mr Robert James Marshall, sought relief from the Fair Work Commission under section 394 of the Fair Work Act 2009, on the grounds of unfair dismissal. Mr Marshall's employment with Camm Contracting ended on 28 February 2024, and the application for relief was lodged on 25 March 2024, five days beyond the statutory deadline of 21 days from the date of dismissal. The key issue for the court was whether the Commission should extend the time for lodging the application under section 394(3) of the Act due to exceptional circumstances.

The court considered various factors, including the reason for the delay, whether the applicant became aware of the dismissal post-effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the applicant and others in a similar position. The court found that the delay was due to a mail redirection by Australia Post, which was beyond Mr Marshall's control. The court also noted that the absence of prejudice to the employer and the consistency of this case with past decisions favoured an extension. The court determined that exceptional circumstances existed and granted the extension, allowing the application to proceed.

The court ordered that the application be programmed for further directions, enabling the matter to progress to a full hearing on the merits of the unfair dismissal claim.

Orders