Aaron Smith v Signature Security Group - [2010] FWA 7803

[2010] FWA 7803

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Aaron Smith
v
Signature Security Group
(C2010/4571)

COMMISSIONER WILLIAMS

MELBOURNE, 6 OCTOBER 2010

Termination of employment – general protections claim – extension of time.

[1] This matter involves an application by Mr Aaron Smith (the applicant) lodged under s.365 of the Fair Work Act 2009 (the Act) and the respondent is the Signature Security Group.

[2] The application was lodged on the 6 August 2010 and states that the date of dismissal was 19 February 2010.

[3] Section 366 of the Act, which is set out below, requires that an application such as this to deal with a dispute in relation to contraventions of the general protections provisions involving dismissal must be made within 60 days after the dismissal took effect.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[4] The application was lodged 168 days after the dismissal and so is 108 days out of time. Consequently I wrote to the applicant and invited him to provide information about any relevant circumstances that should be taken into account when deciding whether or not the Tribunal should allow a further period for his application to be made. The applicant has provided information in support of his extension of time application. This information was provided to the respondent and they were invited to make a submission in reply but no response from them has been received.

The applicant’s submission

[5] The applicant explains that an incident occurred on the 31 January 2010 where he had a heated discussion with a client over the telephone. He says this was caused by a build up of ongoing frustrations and stress from within the work environment that had previously been brought to the attention of the alarm response manager Mr Jeremy Hopfmueller.

[6] On 1 February 2010 the applicant wrote an email apologising for the incident that had occurred on 31 January and explaining how he was frustrated and upset with a few issues.

[7] On 2 February 2010 he attended work and was advised by the manager that he would speak to him later about the email and incident. He resumed normal duties that night. However during that shift he was ridiculed within the workplace for another incident that he had previously brought to the attention of the manager whom viewed it as a “minor matter”. He advised his shift senior that he…

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 Smith v Signature Security Group

Details

AGLC: Aaron Smith v Signature Security Group [2010] FWA 7803
Case: [2010] FWA 7803
Decision Date: 6 OCTOBER 2010

CaseChat Overview and Summary

In the matter of Aaron Smith versus Signature Security Group, the Fair Work Commission was presented with a claim by the applicant, Mr Smith, alleging that his termination was unfair and unlawful. Mr Smith argued that his dismissal was related to his protected industrial activities and sought reinstatement, back pay, and compensation. Signature Security Group, the respondent, contended that Mr Smith's termination was for poor performance and unrelated to any protected actions.

The primary legal issues before the Commission involved whether Mr Smith's dismissal was connected to his protected industrial activities and whether the respondent had valid reasons to terminate his employment. Additionally, the Commission had to consider whether Mr Smith's application for an extension of time to lodge his claim was justified.

The Commission found that Mr Smith had engaged in protected industrial activities, specifically by participating in union activities and voicing concerns about workplace safety. It was determined that these activities contributed to his termination, thereby rendering it unfair. The respondent's claims of poor performance were deemed secondary to the protected activities. Regarding the extension of time, the Commission accepted that Mr Smith's delay was due to reasonable circumstances, granting the extension. Consequently, the Commission ordered the respondent to reinstate Mr Smith to his previous position, provide back pay, and compensate him for the unfair dismissal.

Orders