Trevor McGuire v Lyndal Gowland - [2024] FWC 1219

[2024] FWC 1219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Trevor McGuire
v

Lyndal Gowland

(U2024/1903)

COMMISSIONER CRAWFORD

SYDNEY, 9 MAY 2024

Unfair dismissal application filed out of time – long delay – lack of medical evidence - no exceptional circumstances – application dismissed

Background

Trevor McGuire (Mr McGuire) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he has been unfairly dismissed by Lyndal Gowland (Ms Gowland).

Ms Gowland operates the Lyndal Gowland & Associates law firm as a sole trader. Mr McGuire was employed by Ms Gowland on around 19 March 2021 to perform general maintenance, cleaning, and shredding work at the law firm’s office.

Mr McGuire was dismissed effective 6 July 2023 for alleged serious misconduct. The alleged conduct was removing confidential documents from the law firm office without authorisation.

Mr McGuire and Ms Gowland were in a de facto relationship for around 30 years. The relationship ended in around November 2023 in acrimonious circumstances.

Mr McGuire’s Form F2 unfair dismissal application was received by the Commission on 21 February 2024.

On 20 March 2024, Ms Gowland filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr McGuire’s application was not filed within 21 days of the dismissal taking effect on 6 July 2023 and argued that an extension of time should not be granted.

I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for 3 May 2024 via video.

The directions included an opportunity for the parties to make submissions in support of any requests for permission to be represented at the determinative conference/hearing and an opportunity for any requests to be opposed by the other party. Ms Gowland sought permission to be represented by Carly Stebbing from Resolution123 Pty Ltd. This request was not opposed by Mr McGuire. I granted permission on 2 May 2024 on the basis that it would enable to the matter to be dealt with more efficiently, given its complexity. I was particularly conscious of the breakdown in the personal relationship between Mr McGuire and Ms Gowland, which has led to court proceedings and orders. It would have been extremely difficult to conduct the proceeding if Ms Gowland was not represented.

Mr McGuire represented himself at the determinative conference/hearing on 3 May 2024. Ms Stebbing represented Ms Gowland.

At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference rather than a hearing because a more informal process was likely to assist Mr McGuire, given he was unrepresented and not familiar with the processes. The parties agreed to this course of action. I decided to conduct a determinative conference.

Material filed

Mr McGuire

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 Trevor McGuire v Lyndal Gowland 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: [2024] FWC 1219
Decision Date: 9 MAY 2024

CaseChat Overview and Summary

Trevor McGuire, a former employee of Lyndal Gowland's law firm, filed an unfair dismissal application with the Fair Work Commission, alleging wrongful termination and misconduct. The application was filed well beyond the statutory 21-day limit, prompting Gowland to object on jurisdictional grounds and argue against an extension of time. The case was heard via a determinative conference on 3 May 2024, with McGuire representing himself and Gowland being represented by Carly Stebbing. The primary legal issue was whether the Commission should grant an extension of time for the filing of the unfair dismissal application, considering the significant delay and lack of exceptional circumstances.

The Commission examined several factors to determine if exceptional circumstances existed, including the reason for the delay, Mr McGuire's awareness of the dismissal, any action taken to dispute the dismissal, the prejudice to the employer, the merits of the application, and fairness to other similarly situated individuals. Mr McGuire cited serious medical issues, personal disputes, and the breakdown of his long-term relationship with Ms Gowland as reasons for the delay. However, the Commission found that Mr McGuire did not provide sufficient evidence to substantiate these reasons as preventing him from filing the application within the required timeframe. Additionally, the Commission noted that the merits of the application were neutral due to significant factual disputes between the parties. Given these findings, the Commission concluded that exceptional circumstances were not present.

Based on the analysis of the factors under section 394(3) of the Fair Work Act, the Commission decided not to grant an extension of time for the filing of the application. Consequently, the application was dismissed. The Commission's decision emphasized the importance of consistent application of the law and the high threshold for granting extensions of time in unfair dismissal cases.

Orders