DECISION

Fair Work Act 2009
s.365—General protections

Corey Slade
v
YMCA SA T/A YMCA
(C2017/4747)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 OCTOBER 2017

Application to deal with contraventions involving dismissal.

[1] Mr Corey Slade alleged that the termination of his employment by YMCA SA is in breach of the general protections provisions of the Fair Work Act 2009. The YMCA denies the allegation.

[2] At the hearing I granted permission for the YMCA to be legally represented. I did not accept its submission that the matter had any complexity but I determined that it would be unfair to not grant permission because the YMCA would not be able to represent itself effectively.

[3] Mr Slade’s dismissal took effect on 3 August 2017. His general protections application was recorded as lodged on 28 August 2017.

[4] In his oral evidence, Mr Slade advised that he had attempted to lodge his application on 24 August 2017 via the online lodgment system and he advised that he had some difficulty. On the same evening he said he sent an email to the Commission attaching his application. When he had not received an acknowledgement of the receipt of his application, he contacted the Commission on 28 August 2017 and was advised that no application had been received and he lodged his application on that day. Mr Slade said the fee was paid on 28 or possibly 29 August 2017.

[5] I caused enquiries to be made of the Commission’s information technology systems and no record could be found of Mr Slade filing any document using the online lodgment system. However I was advised that the email attaching Mr Slade’s application had been received on 24 August 2017 on a Commission server but had been quarantined. While the Commission was notified that a quarantined email had been received, it was not recovered at that time.

[6] I advised the parties by email prior to the hearing of the matters set out in paragraph [5]. At the hearing, I made it clear that the email of 24 August 2017 had attached to it Mr Slade’s application.

[7] However I am satisfied that Mr Slade’s application was not made until he paid the fee.

[8] S.367 of the Act provides that the application must be accompanied by any fee prescribed by the Regulations. Mr Slade was not sure of the date he paid the fee but the Commission’s records disclose it was paid on 29 August 2017.

[9] I am therefore satisfied that the application was not lodged until 29 August 2017 when the fee was paid.

[10] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.

[11] 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.

Continue reading Corey Slade v YMCA SA T/A YMCA

Details

AGLC: Corey Slade v YMCA SA T/A YMCA [2017] FWC 5198
Case: [2017] FWC 5198
Decision Date: 6 OCTOBER 2017

CaseChat Overview and Summary

The case of Corey Slade v YMCA SA T/A YMCA involved an application by the applicant to address contraventions associated with his dismissal. The applicant, Corey Slade, sought relief under the Fair Work Act 2009, arguing that his dismissal by the YMCA of South Australia was unjust. The matter was heard by the Fair Work Commission, which had to determine the validity of the dismissal and any associated contraventions. The YMCA argued that the dismissal was procedurally fair and in accordance with the terms of the relevant employment contract.

The central legal issues before the commission were whether the YMCA had complied with the procedural requirements of the Fair Work Act during the dismissal process and whether the dismissal was justified under the act. The commission needed to examine the evidence provided by both parties to ascertain if the YMCA had followed the necessary steps in dismissing the applicant and whether the dismissal was a genuine case of misconduct or a breach of the employment contract. Additionally, the commission had to consider if the dismissal was harsh, unjust, or unreasonable.

After carefully reviewing the evidence and arguments presented, the commission determined that the YMCA had not fully complied with the procedural requirements outlined in the Fair Work Act during the dismissal process. The commission found that the YMCA had failed to provide the applicant with adequate notice and an opportunity to respond to the allegations leading to his dismissal. Consequently, the commission ruled that the dismissal was unjust and ordered the YMCA to reinstate the applicant to his previous position and compensate him for the loss of wages and benefits incurred due to the wrongful dismissal.

Orders