Applicant v G4S Custodial Services Pty Ltd - [2022] FWC 254

[2022] FWC 254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Applicant
v

G4S Custodial Services Pty Ltd

(U2022/124)

COMMISSIONER HAMPTON

ADELAIDE, 28 FEBRUARY 2022

Application for an unfair dismissal remedy – extension of time required for lodgement – date dismissal took effect determined – whether exceptional circumstances exist justifying an extension of time – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.

What this decision is about

This decision concerns an application by a former employee (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). In particular, the Applicant requires an extension of time in which to lodge the application. The Applicant is seeking a range of remedies arising from what he contends was his unfair dismissal by his former employer, G4S Custodial Services Pty Ltd (Respondent or G4S).

I have not named the Applicant in this decision due to the particular circumstances of this matter including the nature of the parties. This includes the fact that a public disclosure of the former employment relationship may create unhelpful and unnecessary hazards for the Applicant, depending upon the outcome of some criminal proceedings to be canvassed below.

The Applicant was employed as an Escort Officer as part of a prisoner transport services contract (contract) provided by G4S to the South Australian Department of Correctional Services (SADCS or the Department). On 17 May 2020, the Applicant was charged with a serious criminal offence. Ultimately, the Applicant was remanded from 17 May 2020 until 8 December 2021 at a series of correctional facilities and now remains out on bail pending a hearing of the charges scheduled to be conducted in the next few months. I observe that his initial remand was in a prison in his local community, where he was previously involved with prisoner transport up until his remand. I observe however, the Applicant was soon moved to another correctional facility in another regional location where he was treated as an “at risk” prisoner. Upon being advised by South Australia Police that the Applicant had been charged, G4S decided to dismiss the Applicant for reasons that included that he was allegedly unable to meet 2 of the inherent requirements of his employment; being his inability to attend shifts and that he was not (would not continue to be) approved by the SADCS to work in connection with the transport services contract given the charges.

The termination of the Applicant’s employment with G4S was communicated by a letter dated 28 May 2020 (dismissal letter). Given that the Applicant was on remand at the (local) Prison concerned, G4S arranged for the dismissal letter to be provided to the Applicant by the SADCS and sought that he be advised of this fact by the Department. There is a dispute as to whether this occurred and when the dismissal letter was ultimately available to the Applicant. The…

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: [2022] FWC 254
Decision Date

CaseChat Overview and Summary

In this matter, the Applicant, a former employee, has applied for an unfair dismissal remedy under the Fair Work Act 2009, seeking an extension of time for lodging the application. The Applicant seeks to extend the time for lodging the application due to his incarceration, which he contends has caused exceptional circumstances. The Respondent, G4S Custodial Services Pty Ltd, opposed the extension of time on the basis that the dismissal took effect on or about 10 June 2020, and the application was made 548 days after the 21-day limit. Commissioner Hampton has found that the dismissal took effect on or about 10 June 2020, and the application was made beyond the initial period provided by s.394(2)(a). The Commissioner has considered the factors set out in s.394(3) of the Act and has concluded that there are no exceptional circumstances to justify an extension of time. The Commissioner has found that the Applicant has provided a credible explanation for only a part of the long delay in making the unfair dismissal application, and the absence of any real effort to confirm his employment status or take efforts to protect his interests for a significant period of the delay does not assist the Applicant's case. The delay is prolonged, and the Commissioner's conclusion about the purported explanation for the delay tells against a finding of exceptional circumstances. The dismissal application was lodged beyond the initial period provided by s.394(2)(a), and an extension of time has not been granted. Accordingly, there is not a valid application before the Commission. The dismissal application is dismissed, and an Order to that end is being issued in conjunction with this Decision.

Orders