Victor Marco v Restive Tech Pty Ltd - [2023] FWC 2381

[2023] FWC 2381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Victor Marco
v

Restive Tech Pty Ltd

(C2023/3674)

DEPUTY PRESIDENT EASTON

SYDNEY, 15 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – application out of time – not a credible or reasonable explanation for the delay – no exceptional circumstances found – application dismissed.

Mr Victor Marco was dismissed from his employment with Restive Tech Pty Ltd on 27 October 2022. Mr Marco alleges that his dismissal contravened the general protection provisions of the of the Fair Work Act 2009 (“the FW Act”). Section 366(1) of the FW Act requires such applications to be made within 21 days after a dismissal takes effect, in this case being 18 November 2022. Mr Marco did not make his application until 22 June 2023.

Mr Marco seeks an extension of time under s.366(2) to file his application against Restive Tech.

For the reasons that follow, I am satisfied that there were exceptional circumstances or that I should grant Mr Marco an extension of time.

Extension of Time - Consideration

An application to the Commission to deal with a dismissal dispute involving an alleged contravention of the general protection provisions must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (per s.366(1)). The Commission may only allow a further period if it is satisfied that there are exceptional circumstances. Section 366(2) is in the following terms:

“366 Time for application

…
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Section 394 imposes the same time limit on making an application for an unfair dismissal remedy. Section 394(3) and 366(2) are in almost identical terms. Section 394(3)(b) is one additional factor that is not included in s.366(2): “whether the person first became aware of the dismissal after it had taken effect”. The Commission's approach to s.366(2) and s.394(3) are substantially the same.

The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors…

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: [2023] FWC 2381
Decision Date: 15 SEPTEMBER 2023

CaseChat Overview and Summary

Victor Marco has filed an application against his former employer, Restive Tech Pty Ltd, alleging that his dismissal from employment contravened the general protection provisions of the Fair Work Act 2009. The application was made beyond the statutory 21-day period following the dismissal, necessitating an assessment of whether there were exceptional circumstances to warrant an extension of time. The court was required to determine whether Mr Marco's reasons for the delay were credible and reasonable, and whether exceptional circumstances existed under Section 366(2) of the Fair Work Act, taking into account various factors including the reason for delay, actions taken to dispute the dismissal, prejudice to the employer, merits of the application, and fairness.

The court found that Mr Marco's explanations for the delay were not credible or reasonable. His claims of ambiguity in his contract, difficulties in obtaining legal advice, and the late discovery of his replacement were not substantiated by credible evidence. The court found that Mr Marco's explanations for the delay did not indicate exceptional circumstances, and the merits of his application did not support an extension of time. The court also noted that Mr Marco took no steps to dispute the dismissal and that there was some evidence of prejudice to the employer. Consequently, the court concluded that there were no exceptional circumstances present that would justify an extension of time under Section 366(2) of the Fair Work Act.

In conclusion, the court dismissed Mr Marco's application for an extension of time to file his claim, finding that the delay was not due to exceptional circumstances and that Mr Marco had not provided a credible or reasonable explanation for the delay. The application was deemed to be out of time and was dismissed. An order to this effect will be issued separately.

Orders