DECISION

Fair Work Act 2009
s.365—General protections

Alain Ferrus
v
Techforce Staffing Services Pty Ltd
(C2021/4962)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 SEPTEMBER 2021

Application to deal with contraventions involving dismissal– whether application filed within 21 days – extension of time not granted – no exceptional circumstances.

[1] This decision concerns an application made by Mr Alain Ferrus (the Applicant) for the Fair Work Commission to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). Section 366 requires that the application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). The Respondent, Techforce Staffing Services Pty Ltd, objected to the application on the basis that it was filed outside the 21-day period prescribed by s 366(1) and the Applicant had not been dismissed.

[2] The matter has been somewhat protracted because the Applicant initially filed what he claimed to be the wrong application under s 394 of the Act. Thereafter, he filed an application under s 365 of the Act and named, in his view, the ‘incorrect’ respondent, Cleanaway Operations Pty Ltd (Cleanaway), and thereafter he filed a subsequent application under s 365 naming the current Respondent.

[3] The filing date for the Applicant’s first general protections application was 20 August 2021. At that time the Applicant explained that he had filed an unfair dismissal application within time but that it was the ‘wrong application’ (U2021/7371). The unfair dismissal application was discontinued on 23 August 2021. At the time the first general protections application was made, it was lodged one day late, and the named respondent was Cleanaway.

[4] A directions hearing was held on 8 September 2021, as the Applicant had identified that he had addressed the application under s 365 to the wrong respondent employer and sought to amend the name of the respondent employer. The Applicant was permitted to file a second general protections application with the correctly named Respondent.

[5] On 11 September 2021, the Applicant filed a second general protections application with the Respondent named as Techforce Services Pty Ltd. The Respondent did not grapple with it being the correctly named employer.

[6] According to the Respondent the Applicant’s employment had not ceased at its initiative. The Applicant was said to be a casual employee whose assignment with its client, Cleanaway, was brought to an end by the client. However, whilst his assignment at the Cleanaway site ended on 29 July 2021, the Respondent submitted it considered the Applicant for future assignments at other hosts sites and thereafter offered work on 26 August 2021.

[7] However, the Respondent continued that if the Applicant was found to have been ‘dismissed’ then the last day of work with the Respondent was 29 July 2021, and therefore, that should be considered the date when the dismissal took effect. In his first general protections application the Applicant…

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: [2021] FWC 6007
Decision Date: 30 SEPTEMBER 2021

CaseChat Overview and Summary

In the matter of Alain Ferrus versus Techforce Staffing Services Pty Ltd, the Fair Work Commission was called upon to address a dispute concerning the dismissal of Mr. Ferrus from his employment. The crux of the matter was whether the application made to the Commission was filed within the requisite 21-day period from the date of dismissal, as stipulated by the Fair Work Act. The Commission was also tasked with determining if there were any exceptional circumstances that would justify an extension of this time limit.

The primary legal issues centred on the timeliness of the application and whether the Commission had the discretion to extend the statutory deadline under any exceptional circumstances. The Commission considered the statutory requirement that such applications must be lodged within 21 days from the dismissal date, and whether there were grounds to permit a deviation from this timeframe. The Court examined the submissions made by both parties regarding the timeliness of the application and the existence of any exceptional circumstances warranting an extension.

In its decision, the Commission found that Mr. Ferrus's application was not filed within the mandated 21-day period. The Commission held that there were no exceptional circumstances present that would warrant an extension of this statutory deadline. Consequently, the application was dismissed on the grounds of being untimely. The Commission emphasised the importance of strict adherence to the statutory timeframe and the absence of any compelling reasons to deviate from it.

The final orders of the Commission were that the application by Mr. Ferrus to the Fair Work Commission be dismissed for being filed beyond the 21-day statutory period, and no extension was granted due to the lack of exceptional circumstances.

Orders