David Nava v JFVR Enterprises Pty Ltd - [2024] FWC 1590

[2024] FWC 1590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

David Nava
v

JFVR Enterprises Pty Ltd

(U2024/4558)

COMMISSIONER PERICA

MELBOURNE, 18 JUNE 2024

Application for an unfair dismissal remedy

Mr. David Nava (“Nava”) has made an application under s 394 of the Fair Work Act 2009 for a remedy, alleging he had been unfairly dismissed from his employment with JFVR Enterprises Pty Ltd (the Respondent).

Procedural history

The application may have been made out of time. To deal with this threshold issue, I issued directions on 15 May 2024 for the filing of material.

The matter was heard by way of a determinative conference on 11 June 2024 through Microsoft Teams. Nava appeared, represented himself and gave sworn evidence. The Respondent was represented by Mr. Vincent Rewcastle (“Rewcastle”), Director of the Respondent, who also gave sworn evidence.

Towards the end of the Determinative Conference before closing submissions, Nava disconnected from the Microsoft Teams meeting. My associate tried on multiple occasions to contact him without success. As a result of this disconnection, I issued further directions inviting final submissions. No final submissions were filed.

For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.

When must an application for an order granting a remedy be made?

Section 394(2) provides that such an application must be made:

(a) within 21 days after the dismissal took effect: or

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

A Full Bench has stated in relation to a general protections' application but equally applicable here, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.”[1]

Submissions on the date the dismissal took effect.

There is a contest on the evidence on the date the dismissal took effect.

Nava submits the dismissal took effect when he was informed “third-hand over the phone that [his] Workcover claim had expired” on 28 March 2024.[2] His submissions of fact included:[3]

“It took a further 6 days for WorkCover communications file to be sent to me with written confirmation of my dismissal.
I only found out [about my dismissal] after it had taken place, at no time up until the sending of this e-mail have I received form of termination paperwork”

The Respondent argues dismissal took effect five months earlier on 31 October 2023. In his written submissions, Rewcastle of the Respondent made the following submissions of fact:[4]

“[Nava] was dismissed on Tuesday 31 October 2023 at 8am. Location Happy Dayz Café, Loganholme. We briefly spoke and I ordered coffee for Mr. Nava and myself. We then went and sat down. After seeing the letter, he commented “Give me the “f&*king letter” walked to his Ute and drove off… He was dismissed because of poor performance and customers complaining of his demeanour. After his dismissal he took himself to the emergency…

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 David Nava v JFVR Enterprises Pty Ltd

Details

AGLC: David Nava v JFVR Enterprises Pty Ltd [2024] FWC 1590
Case: [2024] FWC 1590
Decision Date: 18 JUNE 2024

CaseChat Overview and Summary

The Fair Work Commission heard an application by David Nava against JFVR Enterprises Pty Ltd for an unfair dismissal remedy. The application was made under section 394 of the Fair Work Act 2009. The central issue was whether the application was made within the required 21-day period after the dismissal took effect, or if exceptional circumstances warranted an extension of time. Nava alleged he was unfairly dismissed, while the Respondent argued the dismissal was for poor performance and customer complaints. The evidence presented showed that Nava was informed of the dismissal on 31 October 2023, though he claimed he only became aware of it on 28 March 2024. The Commission found that Nava was aware of the dismissal on the day it occurred, making his application 152 days late. Nava's reasons for the delay, including technical issues with the online lodgment service and personal circumstances, were deemed insufficient to constitute exceptional circumstances. Consequently, the application was dismissed for being out of time.

The key legal issues revolved around the interpretation of the 21-day period for filing an unfair dismissal application, the definition of 'exceptional circumstances' for an extension, and the factual determination of when Nava became aware of the dismissal. The Commission carefully weighed the evidence and the statutory criteria under section 394(3) of the Fair Work Act, concluding that Nava's reasons for the delay did not meet the threshold for an extension. The decision highlights the importance of timely application filings and the stringent criteria required to grant extensions under the Fair Work Act.

Orders