DECISION

Fair Work Act 2009
s.365—General protections

Daniel Shoveller
v
Cameron Dodds
(C2019/1475)

DEPUTY PRESIDENT BOYCE

SYDNEY, 10 MAY 2019

Application to deal with contraventions involving dismissal — application filed out of time — not a strong case on merits (liability or damages) — lengthy delay — no exceptional circumstances — extension of time refused.

Overview

[1] On 6 March 2019, Mr Daniel Shoveller (“Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth)(“the Act”). The Applicant claims that his employment with Square Myle Pty Ltd ATF Square Myle Trust (“the Respondent”) was terminated by the Respondent on 21 December 2019 in contravention of Part 3-1 of the Act (“the Application”).

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission (Commission) may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[3] The Applicant acknowledges that he lodged his application 51 days outside of the statutory time limit. To be within time, the Applicant should have lodged his application on or before 14 January 2019.

[4] On 3 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period of time within which to lodge his application.

[5] At this hearing, the Applicant represented himself, and the Respondent was represented by Mr Sean Daly, Solicitor, of Kent McRae Lawyers. I granted Mr Daly permission to appear as the Respondent’s legal representative pursuant to s.596 of the Act on the basis that the proceedings would be conducted more efficiently with him involved (i.e. on the basis that both parties with no legal experience being unrepresented would make the conduct of the proceedings less efficient as compared to having at least one of the parties legally represented). The Applicant did not oppose permission being granted to Mr Daly. 3

[6] I have determined that the application should be dismissed. These are the reasons for that decision.

The employment and the dismissal

[7] The Applicant worked for the Respondent from February 2016 to 21 December 2018 on a casual basis. 4

[8] The evidence is that the Applicant resigned his employment via text message to Mr Cameron Dodds, Director of the Respondent, on 21 December 2018. The text message reads:

“the electrics and your other gear is in the bin in front of [sic] shed thanks for the work im [sic] finished up”. 5

[9] Mr Dodds deposes that the only contact the Respondent has had with the Applicant since 21 December 2018 is when the Applicant attended the workplace to return a ladder and to request a…

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 Daniel Shoveller v Cameron Dodds

Details

AGLC: Daniel Shoveller v Cameron Dodds [2019] FWC 3230
Case: [2019] FWC 3230
Decision Date: 10 MAY 2019

CaseChat Overview and Summary

Daniel Shoveller, the applicant, filed an application seeking to address contraventions related to his dismissal against Cameron Dodds, the respondent. The matter was heard in the Fair Work Commission. The primary issue before the Commission was whether to permit the applicant to proceed with his application, which was filed outside the statutory time limit. The secondary issue was whether the applicant had presented a compelling case on either liability or damages, and whether the significant delay in filing could be justified by any exceptional circumstances.

The Commission meticulously reviewed the applicant's arguments and the surrounding facts. It determined that the applicant had not demonstrated a strong case on either the merits of liability or the quantum of damages. Additionally, the Commission noted that the applicant had taken an inordinate amount of time to file the application, and no exceptional circumstances were presented to excuse this delay. Consequently, the Commission found that the application did not meet the criteria for an extension of time. The application was therefore dismissed.

Given the findings, the Fair Work Commission ruled that the applicant's application to proceed out of time was not warranted. The Commission emphasised the importance of adhering to statutory time limits and the necessity of a strong case to justify an extension. No extension of time was granted, and the application was dismissed in its entirety.

Orders