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 evidence supports the notion that the dismissal letter was in June 2020 placed in the personal property of the Applicant held for him by, and within, the prison service at that time and subsequently whilst on remand. Amongst other matters, the Applicant contends that he was unaware of the termination letter and did not access it until shortly after his release on bail in December 2021. This is disputed by the Respondent and this aspect is an important element of this matter going to the length of the delay in making the s.394 application and the explanation proffered by the Applicant.
The application in this matter was ultimately lodged on 31 December 2021. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).
The Applicant has applied for an extension of time by reference[1] to the dismissal taking effect on 28 May 2020; being the date of the dismissal letter. The Respondent advanced its objection to the extension of time on the basis that the dismissal took effect on or about 10 June 2020,[2] coinciding with when, according to G4S, the Applicant was first given access to his personal belongings. During the course of the hearing, I also raised with the parties the prospect that if the Applicant’s version of events was found to be correct, the dismissal may have taken effect later than either of those two alternatives.
Ultimately, for reasons outlined in this decision, I have determined that the dismissal took effect, on or around 10 June 2020. Adopting this date as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 1 July 2020.[3] The application was therefore filed 548 days after the 21-day limit. The Applicant requests the Commission to grant a further period for the application to be made under s.394(3) and the Respondent opposes this request. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are exceptional circumstances.[4]
The Commission has conducted an MS Teams Telephone Hearing to enable the extension of time matter to be determined. The Respondent sought permission to be represented by a Lawyer having regard to s.596 of the Act, largely on the basis of the complexity of the matter. This request was opposed by the Applicant, but permission was granted in this instance principally on the basis as sought. In particular, I was satisfied that there was some complexity arising from the particular circumstances of this matter associated with the evidence of G4S and that there was significant efficiency in enabling these matters to be dealt with by the Respondent’s legal advisors during the course of the hearing itself.[5] These issues concerned the nature of and weight that might be given to some of the evidence and the point at which the dismissal was effective in light of the evidence as canvassed above. As to the discretion to grant permission, I took into account the circumstances of the Applicant, and on balance, determined[6] that I should do so. This was influenced by the capacity (and obligation) of the Commission to ensure a fair hearing in these circumstances and the nature of the issues being raised.
As the Applicant was not represented, I assisted with the conduct of the hearing, gave latitude as to the form of his evidence and submissions, facilitated submissions on the relevant statutory considerations, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission.[7]
The Applicant provided a witness statement[8] and gave sworn evidence on his own behalf. A statement[9] of Mr Toby Burner, who is employed by the Respondent as its Acting General Manager of one of the Prisons relevant to this matter, and comprehensive written submissions on behalf of G4S, were also provided to the Commission. Both witnesses were cross-examined and responded to questions from the Commission.
As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
In general terms, I found that the Applicant and Mr Burner were reliable witnesses and that both sought to assist the Commission with their understanding of the facts. However, the Applicant’s evidence about his awareness of the dismissal letter was not entirely consistent and not always convincing.
I do accept in general terms that the Applicant was careful, particularly when moved away from his initial incarceration (where his role with the Respondent would have been known) to other correctional facilities, to avoid the disclosure of that role to others in the prisons. In that regard, I accept that it is likely that the Applicant had at some point transported prisoners in the broader prison community, but it was not in his interests to broadcast that fact. This meant that he may have been reluctant in some of the correctional facilities to access his personal property, or search the documents placed there, for a G4S letter. However, to the extent that the Applicant at some points in his case directly denied being informed of a letter being placed in his property this aspect was not convincing. I also do not accept any notion that at no time during the over 570 days of his incarceration did the Applicant have concerns about the status of his employment with G4S or had the capacity to safely make at least some enquiries about his employment or to ascertain how to contest any dismissal.
Mr Burner’s evidence about whether the Applicant had had his approval from the SADCS to work within the State correctional services system removed by an express decision of the Department, or simply as a result of his dismissal, was unclear. Whilst I accept that this express removal was likely to occur in the absence of a dismissal, the present evidence before the Commission does not support the notion that there was an express decision made and communicated by the Department to that end.
The evidence about whether the Applicant was informed, via the SADCS, that he was dismissed or had a letter from his employer placed in his property is largely indirect and circumstantial. The SADCS officer concerned did not give evidence. The Commission is not bound by the Rules of Evidence but the caution[10] surrounding reliance upon hearsay and indirect evidence is sound. In this case, the nature of the evidence does permit me to make certain findings about these issues, having regard to the appropriate caveats. The factors leading to that point include:
· The evidence confirms that G4S prepared the dismissal letter and arranged for it to be provided to the SADCS, with a view to being placed in the personal property of the Applicant.
· The dismissal letter was located in the personal property of the Applicant when he accessed that property upon his ultimate release on bail in December 2021.
· G4S expressly requested that the SADCS advise the Applicant of the letter and contemporaneous official records of the Department confirm that this was done. These records confirm the detail of who did this and when it occurred. This includes that the Applicant was informed that there was a letter from his employer placed in his property, and that this occurred, but does not expressly confirm that he was also informed that he was dismissed.
· In respect of the contended discussion with the SADCS officer, at various points in his evidence the Applicant acknowledged that at the time of the initial events he was (understandably) very distressed and may not have taken in the information provided to him in the following terms:
“I don't recall that conversation, but what I can tell your Honour, I was in a position being in my - for the first time in my life being remanded in custody in a world where surrounded by prisoners, actual criminals that have committed horrendous offences, I feared for my own safety for everything. I also had issues where I was thinking about my family, my four children; who was taking care of them, what was happening to them. The circumstances that I was in, there was millions and millions of things going through my head. I don't recall ever having being informed of a letter and I certainly didn't have access to a letter.”[11]
“… I see the point that you're trying to make there, but more so like I had previously explained, it could have been said but it could have gone in one ear and out the other considering the circumstances that I was currently in.”[12]
“So do you accept then that you were notified by the prison that a letter had been placed in your property? It could have been, yes, but it doesn't necessarily mean to me that a termination letter was put in there. Like I said to you, I don't recall being advised that I was terminated by my employer, especially on 3 June.”[13]
As will become clear, all of this evidence enables me to make a finding on the balance of probabilities that the Applicant was informed on 3 June 2020 that there was a letter from his employer placed in his property. However, I cannot be satisfied that he was verbally informed that he had been dismissed.
The immediate context, sequence of events and the timing of the dismissal
The Applicant was employed by G4S in the position of Escort Officer, working in the prisoner transport operations of the SADCS from November 2015 until mid-2020. The Applicant was engaged to work as a casual employee,[14] albeit with relatively regular hours of work that varied upon operational requirements over the four years or so of his employment.
As an Escort Officer working in connection with the contract, the Applicant was required[15] to hold an Instrument of Authority for appointment as an “Officer of the Crown” or “Officer of the Department” issued by SADCS. That is, an approval to work in that context.
On 18 May 2020, G4S was informed by South Australia Police that the Applicant had been arrested and was to be remanded in custody until 27 August 2020 due to him facing criminal charges. The Applicant did not independently notify the Respondent of the charges but was aware that the Police had done so as part of seeking that he not be transported to prison by his colleagues from G4S.
Although it may have been subjectively reasonable for the Applicant to rely upon South Australia Police in that respect, I find that the potential consequences of the charges and incarceration for his employment should have been evident to the Applicant at some stage shortly after his initial remand. This is particularly so given all of the circumstances, including his obligation to report an event of this kind to his employer[16] and making the allowance for the immediate personal impact of his remand set out above.
The termination letter, dated 28 May 2020, advised the Applicant of the termination of his employment in the following terms:
“… …
Your employment
The purpose of this letter is to advise you that your casual employment with G4S cannot continue.
I have been informed that you have been remanded in custody until August 2020, which will prevent you being able to attend any rostered shifts. I have also been Informed of the serious nature of the charges against you, which means any future casual employment with us is untenable.
I understand that these are difficult circumstances and will endeavour to sensitively manage any interaction with your former peers.
Regards,
… …”.[17]
On or around 3 June 2020, an Officer of the SADCS advised the Applicant that a letter from his employer had been placed in his personal property. The Applicant was on remand at that time.
The Applicant was transferred between various correctional facilities during the period of remand, and this involved some 12 different transfers. On each transfer, the Applicant’s personal property was also relocated.
The Applicant may have had access to his property associated with each transfer but in any event confirmed the content of his property on 6 occasions and specifically accessed that property on 9 occasions during the over 570 days of his incarceration between 10 June 2020 and 8 December 2021, when released on “Supreme Court” bail following proceedings in Adelaide. On the balance of probabilities, I find that the termination letter was with the Applicant’s personal property and that he had the opportunity on occasions to locate and read the letter. This included as part of a transfer that occurred on 10 June 2020, where the Applicant signed to acknowledge the relevant property.
I have found that during his incarceration, the Applicant had legitimate concerns about his safety and that the disclosure of his (former) relationship with the Respondent would have been a further risk factor. This was particularly the case in facilities where G4S (or an associated company) conducted the prison. However, I have also found that this did not prevent the Applicant from safely accessing the dismissal letter on occasions or from making some enquiries about his employment. In that regard, I observe that facilities were made available to the Applicant to prepare for some Family Law proceedings at off-site facilities[18] and Mr Burner’s evidence about the facilities available to the Applicant is also relevant in this regard. I also accept that the Applicant may have been concerned about confidentially at some times and some locations when he otherwise accessed his personal property
The Applicant read the dismissal letter shortly after his release on bail in December 2021. Although I have found that the Applicant was informed of the dismissal letter in early June 2020 and had the opportunity to read and access the letter, there is no direct evidence to support the notion that he did so prior to December. On the balance of probabilities, I find that the Applicant either did not later recall the advice about the dismissal letter or chose not to read it given his circumstances and the more immediate priorities.
The operation of s.394(1) of the Act, and the approach to be adopted to assessing when a dismissal takes effect for that purpose, was extensively considered by the Full Bench of the Commission in Ayub v NSW Trains[19] (Ayub). Having reviewed the approach under different statutory regimes and the present legislation, the Full Bench stated:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”
It ultimately summarised the required approach in the following terms:
“[48] … Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.
[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.
It was not contended by G4S that it provided the termination letter directly to the Applicant or otherwise directly advised him of the termination. In this case for reasons outlined earlier, the evidence also does not enable me to conclude that the dismissal itself was verbally communicated to the Applicant via the SADCS. However, I am satisfied that the SADCS advised the Applicant that there was a letter from G4S from his employer that had been placed with his personal property.
I also find that on or about 10 June 2020, the Applicant first had access to his personal property.
Given the context, including the nature and location of his employment and his incarceration on serious criminal charges, it should have been apparent to the Applicant that the letter was likely to be relevant to his ongoing employment with G4S.
As a result, I find that the Applicant’s dismissal took effect on or about 10 June 2020. That is, this is the date from which the Applicant had a reasonable opportunity to find out that he had been dismissed by the Respondent.[20]
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[21] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[22]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) is a high hurdle[23] and contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[24] I now consider these matters in the context of the application.
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour; however, all of the circumstances must be considered on their own merits.[25]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[26]
The Applicant principally relies upon the following propositions as reasons for the delay:
· He was incarcerated in remand from 17 May 2020 until being released from custody on 8 December 2021.
· His incarceration immediately led to the loss of dignity, liberty and access to the normal facilities of life and included having dealings with his (former) work colleagues and with prisoners in a different capacity and he feared for his safety. This led to different priorities.
· The length of the incarceration in the absence of any finding of any guilt, by itself, represented exceptional circumstances.
· He only became aware of his dismissal date in a letter received after being released from custody.
· He did not have ready access to his personal property or legal advice and was very careful about taking any action that might alert fellow prisoners to his association with G4S, given that the Respondent actually conducted one of the Prisons in which he was held for a lengthy period during his incarceration and there was the real potential for retribution.
· Upon being released, he found himself in Adelaide without any accommodation, transport, money or any other resources and needed to seek lodging at a homeless shelter. Upon obtaining that accommodation and travelling to Yatala Labour Prison where he was held immediately prior to his release, he obtained access to his belongings and read the letter in the following week.
· In the absence of resources, he then made enquiries about obtaining legal advice and made this application soon thereafter.
· Apart from lodging this application, the applicant has taken no action to dispute the dismissal and has had no further correspondence or communication with G4S.
I have made detailed findings bearing upon this consideration earlier in this Decision.
I accept that the consequences of the incarceration, particularly given the fact that the Applicant was a (former) employee of G4S, do provide some explanation for period of the delay. Further, I accept that the Applicant had other priorities and that he was more concerned about other matters than confirming his employment status or taking any action to protect his interests in that respect. However, the absence of any attempts to confirm his employment or take any actions to protect his employment-related interests during his incarceration was not reasonable in the present context.
I do accept that given the circumstances facing the Applicant when he was ultimately released on “Supreme Court” bail in Adelaide, he then proceeded with reasonable promptness to ascertain his capacity to make and then lodge this application.
As a result, I consider that the Applicant has provided a credible or satisfactory 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 my conclusion about the purported explanation for the delay tells against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that the dismissal of the Applicant took effect on or about 10 June 2020. I have also found that although the Applicant had a reasonable opportunity to be aware of his dismissal from that time, he did not read the dismissal letter until the week after his release on 8 December 2021.
This means that the Applicant was aware of the actual dismissal considerably later than the date of it taking effect. The fact the Applicant did not take any steps to ascertain the status of his employment, despite being informed that there was a letter from his employer, puts that delay in a particular context.
Subject to that significant caveat, this consideration supports a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant took no action to enquire about his circumstances or dispute the dismissal other than making this application. The Respondent was not on notice that the Applicant intended to dispute the dispute.
This consideration tells against a finding of exceptional circumstances.
Prejudice to the employer
The Respondent contends that it lost the relevant contract in which the Applicant was employed on 31 July 2021. Amongst other consequences, it contends that those involved in the decision to dismiss the Applicant are no longer employed by it, and as a result, the delay in bringing the application therefore limits the ability of the Respondent to lead evidence in defence of the matter.
Based upon the evidence I accept the factual basis of the Respondent’s proposition and that not having the decision-maker in its employment makes the gathering of that evidence more difficult. I also accept that the significant delay involved might mean that the recall of events may not be as clear. However, given the resources of G4S and the nature of the reasons for dismissal, and the fact that the broad facts of the charges being laid and the incarnation itself are not in dispute, it is not clear that this form of prejudice is particularly significant in this case.
The existence of some prejudice to the Respondent, including as a direct result of the delay, is a factor militating against a finding of exceptional circumstances; albeit, not significantly so.
Merits of the application
The merits of an application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[27]
The Applicant contends that his dismissal was unfair on the basis that:
“… the rule of law in Australia (means) that I am an innocent person who was unfortunate arrested and remanded for an extended period based upon an allegation that I profusely and adamantly deny.”[28]
In effect, the Applicant contends that he is innocent until and unless there is a finding by the Court of any guilt and that he should not have been dismissed until the outcome of any criminal proceedings were known. Further, in submissions made in relation to other aspects, he also contends that G4S did not follow a proper process and did not provide him with an opportunity to respond to the alleged basis of the dismissal before it took place.
G4S contends, in effect, that there is no merit to, or utility in continuing with, the application on the following basis:
· The Applicant was a casual employee and there was no obligation on the Respondent to continue to offer shifts;[29]
· The Applicant failed to notify G4S of the charges being laid, contrary to the obligations placed upon him;
· The charges laid against the Applicant meant that he would lose the authority to work under the contract with the SADCS and could not be employed by the Respondent in connection with any work associated with correctional services;
· Given the placing of charges and the incarceration, it was in any event problematic for the Applicant to be employed in the future in any capacity transporting or otherwise dealing with prisoners as a staff member of G4S; and
· As G4S lost the contract in which the Applicant was engaged on 31 July 2021 and his position was “redundant”, and the Applicant could not have been available to work (even if still employed) at any time between his arrest in May 2020 and the ultimate hearing of his charges in Court, there was no basis for an award of compensation or any other remedy in the event that the application proceeded and was successful on merit.
The Applicant contended that he could have sought redeployment within the broader G4S organisation when the contract ended in July 2021, and this is possible. However, I consider that this notion is very remote given the circumstances including the nature of his employer’s role within the SADCS and the implications of the charges and incarceration given that context. I do accept that the procedural aspects of the dismissal do raise issues under s.387(b) and (c) of the Act. However, the practical import of the matters foreshadowed by the Respondent regarding the merit and utility of the application have considerable force.
Based upon the limited evidence about this point, I consider that the Applicant has an arguable but not strong case associated with the procedural fairness aspects. I have weighed this consideration into the overall assessment of exceptional circumstances required in this matter.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant factor.[30] In this regard, I note that the Applicant sought to draw some parallels with circumstances where other G4S employees were dismissed only after an investigation was conducted. This would, if supported by evidence, be more relevant to the merits of the s.394 application itself but does not appear to directly engage with this particular consideration as part of this extension of time matter. I therefore consider that this weighs mutually between the parties as a consideration of exceptional circumstances.
Conclusions
Having considered all of the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am on balance not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a), and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[31] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
The Applicant on his own behalf.
A Mollinson, Lander & Rogers Lawyers, with permission, for G4S Custodial Services Pty Ltd, the Respondent.
Hearing details:
2022
February 11
By Telephone.
[1] Form F2 application.
[2] Form F3 response and reflected in submissions.
[3] The 21 day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[4] Section 394(3) of the Act.
[5] Section 596(2)(a) of the Act.
[6] Applying the approach set out in Grabovsky v United Protestant Association of NSW Inc[2018] FWCFB 4362 at [35] – [38],
[7] See also the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
[8] Exhibit A1.
[9] Exhibit R1.
[10] See the principles helpfully summarised by Saunders DP in Longobardi, Patrick v New Horizons Enterprises Limited T/A New Horizons - [2021] FWC 2203 at [14] to [17].
[11] Transcript PN119 and confirmed at PN133.
[12] In cross-examination Transcript PN139.
[13] In cross-examination Transcript PN146.
[14] Contract of employment clauses 3.1.1 and 3.1.2 – Exhibit R2.
[15] Correctional Services Act 1982 (SA) S.4A.
[16] Code of Conduct - clause 3.6 and confirmed in Departmental approval – Attachment 2 to Form F3 Employer Response.
[17] Part of exhibit R2 - attached to the Respondent’s Form F3 Response form.
[18] Transcript PN207.
[19] [2016] FWCFB 5500.
[20] Consistent with Ayub at [49].
[21] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[22] Ibid.
[23] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[24] Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[25] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[26] Ibid.
[27] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[28] Form F1 application at 3.2.
[29] By reference to the terms of the contract of employment – Attachment 1 of exhibit R2.
[30] See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.
[31] PR738388.
Printed by authority of the Commonwealth Government Printer
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