Samantha Rowe v Falcon Traffic Pty Ltd - [2025] FWC 1809

[2025] FWC 1809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Samantha Rowe
v

Falcon Traffic Pty Ltd

(C2025/2423)

DEPUTY PRESIDENT BELL

MELBOURNE, 27 JUNE 2025

Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances – application dismissed.

On 27 March 2025, Ms Samantha Rowe (Applicant) applied under s 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).

On 2 May 2025 Falcon Traffic Pty Ltd (Respondent) filed its F8A Response to the general protections application, and raised a jurisdiction objection that the Applicant had not been ‘dismissed’ as is contemplated in s 365(a) of the Act. It also stated that its correct legal name is Falcon Traffic Pty Ltd, which I have now amended the name of the proceeding to reflect.

In her Form F8 application filed with the Commission Ms Rowe initially stated, in response to Q1.3 what date did you dismissal take effect?, that she had not been dismissed. However, in a subsequent call with Registry staff on 30 April 2025, she advised that the date of her dismissal was 16 January 2025, being the date of her last shift. Based on the dates provided by the Applicant, the Application was made outside the 21-day time limit set out in s 366(1) of the Act (out of time jurisdiction issue), which requires an application under s 365 to be made within 21 days after the dismissal took effect.

Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions in regard to both jurisdiction issues that arose in the matter and scheduled a Mention with the parties for 20 May 2025. On 19 May Ms Rowe advised my Chambers she was unable to attend the Mention. An email was subsequently sent to the parties confirming the Mention would be vacated and relevantly stating (original emphasis):

“Amended Directions – extension of time question only.

The Directions issued on 13 May addressed both jurisdictional issues that arise in this matter, being the extension of time question (as based on the date she says she was dismissed Ms Rowe has filed her application outside the 21 day time limit set out in s.366(1) of the Fair Work Act), and the Respondent’s jurisdiction objection that Ms Rowe is a casual employee, and was not dismissed.
The Deputy President has decided he will determine the extension of time question first.
Accordingly, please find attached Amended Directions issued in this matter, which replace the Directions previously issued on 13 May 2025.
Please ensure you read the Amended Directions carefully, as they provide important information about the matter including what each party must now do, and ensure you comply with the due dates set out.
For avoidance of doubt, the Respondent’s objection that Ms Rowe was not ‘dismissed’ will be determined after the extension of time conference/hearing (if required).

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.

Keep reading for free

Create a free CaseChat account to read Samantha Rowe v Falcon Traffic Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FWC 1809
Decision Date: 27 JUNE 2025

CaseChat Overview and Summary

In the Fair Work Commission, Samantha Rowe applied under section 365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her dismissal by Falcon Traffic Pty Ltd. The Commission faced the task of determining whether the application, filed 49 days beyond the statutory 21-day limit, could be considered within time if there were exceptional circumstances justifying the delay. Additionally, the respondent raised a jurisdictional objection regarding whether Ms Rowe had indeed been dismissed.

The primary legal issue was whether there were exceptional circumstances justifying an extension of time for Ms Rowe's application, which was filed outside the statutory 21-day period. This required consideration of several factors under section 366(2) of the Act, including the reason for the delay, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the parties. The respondent also contested whether Ms Rowe had been dismissed, but this issue was to be addressed after the extension of time matter.

The Deputy President found that Ms Rowe had not provided a compelling reason for her significant delay in filing the application, and that the limited explanation offered did not constitute exceptional circumstances. The absence of any action taken by Ms Rowe to contest the dismissal further weighed against her application for an extension of time. While there was no evidence of significant prejudice to the employer, the merits of Ms Rowe’s claim, as presented, were weak and did not support a finding of exceptional circumstances. The fairness between the Applicant and others in similar positions did not provide additional support for the extension of time. Given these considerations, the Deputy President concluded that there were no exceptional circumstances warranting an extension of time. Consequently, Ms Rowe’s application was dismissed. An order to this effect was issued.

Orders