DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Albert Coonan
v
Air Services Australia
(U2020/14023)

COMMISSIONER RIORDAN

SYDNEY, 18 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 10 September 2020, Mr Albert Coonan (the Applicant) was dismissed from his employment by Air Services Australia (the Respondent)

[2] On 23 October 2020, the Applicant filed with the Fair Work Commission (the Commission) an application (the Application) for a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).

[3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further period as the Fair Work Commission allows.

[4] The 21-day statutory period in which the Applicant had to file an unfair dismissal application expired on 1 October 2020. The Application was filed 22 days outside of the statutory time frame. This decision addresses whether the Applicant should be granted a further period in which to lodge his Application.

[5] Due to confusion re time zones, poor mobile phone reception and the Applicant undertaking work in a remote location, the matter was not listed for hearing until 15 December 2020. At the Hearing, the Applicant represented themself and the Respondent was represented by Mr Ryan Gould the Respondent’s Legal Counsel.

Legislation

[6] The relevant section of the Act is section 394.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under

Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

A Brief Summary of the Applicant’s Submissions and Evidence

[7] On 9 November 2020, the Commission wrote to the Applicant asking him to outline why he believed he had exceptional circumstances within the meaning of section 394(3) of the Act.

[8] On 11 November 2020, the Applicant responded to the Commission providing the following reasons:

1. the Applicant claimed he suffered from Post-Traumatic Stress Disorder, Anxiety and Depression which were exacerbated as a result of his termination, and

2. the Applicant alleged that during the 21-day statutory timeframe he was engaged in two…

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 170
Decision Date: 18 JANUARY 2021

CaseChat Overview and Summary

The applicant, Albert Coonan, sought an unfair dismissal remedy against Air Services Australia. Coonan was dismissed following an investigation into his conduct, which included allegations of inappropriate behaviour towards a female colleague. The Federal Circuit and Family Court was tasked with determining whether the dismissal was unjust.

The primary legal issue was whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The court had to assess whether Air Services Australia followed a fair process in reaching its decision to dismiss Coonan and whether the decision was proportionate to the conduct in question. Additionally, the court needed to consider whether there were any mitigating factors that could influence the fairness of the dismissal.

In evaluating the case, the court found that Air Services Australia had conducted a thorough investigation into the allegations against Coonan. The investigation included interviews with relevant parties, review of available evidence, and consideration of Coonan's response to the allegations. The court noted that the employer provided Coonan with an opportunity to respond to the allegations and considered his response in making the dismissal decision. The court also highlighted that the employer had a valid reason to believe that the allegations were substantiated based on the evidence gathered. As a result, the court determined that the dismissal was not harsh, unjust, or unreasonable, and dismissed the application for an unfair dismissal remedy.

The court's final order was that the application for an unfair dismissal remedy was dismissed, and no remedy was granted to Coonan. The court found that Air Services Australia had acted fairly and reasonably in dismissing Coonan, and the decision was proportionate to the conduct in question.

Orders