DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Con Markos
v
Nine Network
(U2019/10338)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 8 JANUARY 2020

Application for an unfair dismissal remedy – Links Operator – casual employee – extension of time – whether dismissed – whether minimum employment period served – dismissal found - no exceptional circumstances for late lodgement – application dismissed

[1] On 16 September 2019 Con Markos (Mr Markos or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Channel 9 South Australia Pty Ltd (Nine Network, Nine or the Respondent Employer).

[2] His application is opposed by the Nine Network, which raises three jurisdictional objections.

[3] There is a dispute as to whether Mr Markos, as a casual employee, was dismissed and the date any such dismissal took effect. The Nine Network claims that following his last worked casual shift on 7 October 2018 he was not offered further shifts but remains ‘on the books’. Mr Markos claims that he was dismissed in mid to late October 2018 when he was no longer rostered for shifts.

[4] There is no dispute that Mr Markos’s application is out of time, whatever the effective date of dismissal. The delay is in the order of ten months. There is a dispute as to whether exceptional circumstances exist so as to warrant an extension of time. Mr Markos says that exceptional circumstances led to the delay. The Nine Network dispute this proposition.

[5] There is a dispute as to whether Mr Markos, if dismissed and if the time to file his application is extended, meets the minimum employment period (in this matter, of six months 1) so as to be protected from unfair dismissal. The Nine Network claims that his service as a casual employee was not regular and systematic and that he had no reasonable expectation of continuing employment on that basis. Mr Markos disputes these propositions.

[6] I heard these three jurisdictional issues (whether dismissed, whether time for filing should be extended and whether minimum employment period met) as threshold matters at a telephone hearing on 13 December 2019.

[7] This decision concerns those issues.

[8] In advance of the hearing I directed Mr Markos to file materials in support of his application for the extension of time, and for the Nine Network to do likewise in support of their jurisdictional contentions. 2 Each party did so.

[9] At the hearing, and in light of complexity raised by the jurisdictional issues and without objection, I granted permission for the Nine Network to be represented by a legal practitioner. Mr Markos was self-represented but assisted by a support person, Mr Psevdos who (with my permission) undertook some advocacy on his behalf.

[10] Proceedings were audio recorded.

[11] I heard evidence from three persons: Mr Markos (orally and via…

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: [2020] FWC 59
Decision Date: 8 JANUARY 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Con Markos, a casual employee of Nine Network, for an unfair dismissal remedy. Con Markos alleged that he had been dismissed without just cause or reason and sought reinstatement or compensation. Nine Network argued that Markos was not eligible for the remedy as he was a casual employee and had not served the required minimum employment period. Additionally, they contended that the application was lodged outside the allowable time frame, and no exceptional circumstances existed to justify the delay.

The primary legal issue before the Commission was whether Con Markos was eligible for an unfair dismissal remedy despite being a casual employee. The Commission considered whether Markos had been dismissed and whether he had fulfilled the requisite minimum employment period. Furthermore, the Commission examined whether there were exceptional circumstances to warrant an extension of the time limit for lodging the application. The Commission had to balance the statutory criteria with the principles of fairness and justice in employment relations.

In its decision, the Fair Work Commission determined that Con Markos had indeed been dismissed. However, it found that he did not qualify for the unfair dismissal remedy as he had not served the required minimum employment period of six or twelve months, depending on the size of the employer. The Commission also concluded that there were no exceptional circumstances to extend the time for lodging the application. As a result, the application for an unfair dismissal remedy was dismissed.

The Commission's final order was that the application be dismissed, with no orders for reinstatement or compensation made in favour of Con Markos.

Orders