Aaron Giles v Linkforce Engineering Pty Ltd - [2024] FWC 1201

[2024] FWC 1201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aaron Giles
v

Linkforce Engineering Pty Ltd

(U2023/12782)

COMMISSIONER SCHNEIDER

PERTH, 10 MAY 2024

Application for an unfair dismissal remedy

Mr Aaron Giles (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Linkforce Engineering Pty Ltd (the Respondent).

The Respondent objects to the application on the ground that the Applicant was not dismissed or, in the alternative, that the application has been made out of time. Before considering the merits of the application, the Commission must be satisfied that there are no jurisdictional issues.

In the usual circumstances, the Commission would not consider an objection that an applicant has not been dismissed until after considering whether the application was lodged within time. However, to do so, it is necessary to ascertain the date that dismissal took effect. The matter currently before the Commission involves significant contention regarding whether the Applicant’s employment ended at the initiative of the Respondent or by way of resignation. As a result, the date on which the Applicant’s employment came to an end is also contested. In the circumstances of this matter, and upon assessment of the materials before the Commission, I have determined the most appropriate course of action is to first consider the issue of whether there is a dismissal. For completeness however, I have also included consideration of the Out of Time issue, concluding that no extension would be granted.

A Hearing was held to determine both objections.

The Respondent filed submissions in the Commission on 11 March 2024. The Applicant filed submissions in the Commission on 15 March 2024. The Respondent filed submissions in reply with the Commission on 23 March 2024.

At the Hearing, the Applicant gave evidence on his own behalf.

The following witnesses gave evidence on behalf of the Respondent:

·Mr Douglas Seth, Regional Manager (Mr Seth).

·Mr Beau French, Operations Electrical Coordinator (Mr French).

Legislation – Not Dismissed/Period for Lodgement

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, the matter would proceed.

When is a person protected from unfair dismissal?

Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum…

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 Aaron Giles v Linkforce Engineering Pty Ltd

Details

AGLC: Aaron Giles v Linkforce Engineering Pty Ltd [2024] FWC 1201
Case: [2024] FWC 1201
Decision Date: 10 MAY 2024

CaseChat Overview and Summary

Aaron Giles brought an application before the Fair Work Commission for an unfair dismissal remedy, claiming he was unfairly dismissed by Linkforce Engineering Pty Ltd. The Respondent contested the application on the grounds that Mr Giles had not been dismissed and, alternatively, that the application was out of time. The Commission found that Mr Giles had not been dismissed within the meaning of the Fair Work Act 2009, as his employment ended due to his resignation, not through any initiative of the Respondent. The Commission concluded that Mr Giles had not provided sufficient evidence to warrant an extension of time for lodging the application. The application was dismissed, and an order to that effect will be issued separately.

Orders