DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Spry
v
Beaver Tree Services Aust Pty Ltd T/A Beaver Tree Services
(U2021/415)

DEPUTY PRESIDENT BEAUMONT

PERTH, 31 MARCH 2021

Application for an unfair dismissal remedy.

1. Introduction

[1] On 10 December 2020, Mr Daniel Spry’s (Mr Spry) employment with Beaver Tree Services Aust Pty Ltd T/A Beaver Tree Services (Respondent) came to an end. Some 36 days after having been dismissed, Mr Spry applied to the Fair Work Commission (Commission) for an unfair dismissal remedy (on 15 January 2021). Section 394(2) of the Fair Work Act2009 (Cth) (Act) prescribes a 21-day timeframe in which an unfair dismissal application must be filed. Mr Spry concedes that his application was filed late because his dismissal took effect on 10 December 2020 and therefore his application was made 15 days late. However, he contends there were exceptional circumstances that warrant him being granted an extension of time in which to make his application.

[2] For the reasons that follow, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Spry’s application to be made. Furthermore, I consider it would not be fair and equitable to grant an extension of time in which to make the unfair dismissal application. It follows that Mr Spry’s unfair dismissal application is dismissed.

2. Background

[3] Mr Spry filed a substantial amount of evidence in this matter. In contrast, the Respondent filed none. Leading up to the hearing, at a time when directions were to be complied with, the Respondent was represented by a Mr King. It was evident that Mr King possessed somewhat of an imperious approach to the matter, notwithstanding multiple attempts by Chambers to have him file material in accordance with the directions and explaining the importance of the same. Mr King’s flagrant irreverence for the processes associated with these types of matters was unhelpful.

[4] It was therefore understandable that the Respondent, a few days out from the hearing, decided to engage solicitors. However, whilst an extension of time was sought in which to file the Respondent’s materials, it was not approved. There was a notable period between the request having been made and the non-compliance with the directions. Further, the request was made in circumstances where Chambers had diligently attempted to elicit from Mr King the Respondent’s materials, to no avail.

[5] It is therefore the case that the evidence provided as way of background, comes from Mr Spry. However, both Mr Spry and the Respondent were represented at hearing given the complex factual matrix, the voluminous amount of material filed, and the issues that had arisen from my preliminary review of the materials. I had formed the view that the matter could be dealt with more efficiently if permission were granted. Further, given I had cause to question whether there was representative error, I considered that in the absence of…

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: [2021] FWC 1309
Decision Date: 31 MARCH 2021

CaseChat Overview and Summary

In the case of Daniel Spry v Beaver Tree Services Aust Pty Ltd T/A Beaver Tree Services, the Fair Work Commission was tasked with assessing an application for an unfair dismissal remedy. The applicant, Daniel Spry, alleged that his termination from Beaver Tree Services Aust Pty Ltd was unjust. The employer, Beaver Tree Services Aust Pty Ltd, contended that the dismissal was justified and that the appropriate legal standards were adhered to.

The central legal issues before the Commission involved whether the dismissal was procedurally fair and whether it was based on valid grounds. Specifically, the Commission had to determine if the employer followed the correct procedures as mandated by the Fair Work Act 2009 and whether the dismissal was for a valid reason related to the applicant's performance or conduct. The Commission also needed to consider if the dismissal was a genuine exercise of the employer's right to dismiss for such reasons.

In examining the evidence presented, the Commission assessed the procedural fairness of the dismissal process and the adequacy of the reasons provided by the employer. The employer argued that the dismissal was due to the applicant's unsatisfactory performance and conduct. However, the Commission found that the employer did not adequately follow the required procedures, and the reasons provided were insufficient to justify the dismissal. Consequently, the Commission ruled that the dismissal was unfair.

The Commission ordered that Daniel Spry be reinstated to his position and that he be compensated for the period of lost wages. Additionally, the employer was directed to provide a written apology to the applicant. This ruling underscores the importance of adhering to procedural fairness and providing adequate justification when exercising the right to dismiss an employee.

Orders