[2014] FWC 4146 [Note: An appeal pursuant to s.604 (C2014/5131) was lodged against this decision - refer to Full Bench decision dated 29 August 2014 [[2014] FWCFB5779] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Parker
v
Officeworks Ltd
(U2014/6770)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 24 JUNE 2014

Application for relief from unfair dismissal-extension of time

[1] I heard this application by transcribed telephone link on 30 May 2014. On 6 June 2014 I issued an order extending time for lodgement. These are my reasons for doing so.

[2] Mr Parker was represented by his mother, Mrs Teresa Churchyard. Officeworks Ltd (Officeworks) was represented by Mr Courtney Dixon.

[3] Mr Parker was dismissed from the employment of Officeworks on 18 March 2014. The application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged on 23 April 2014, some 22 days late.

[4] Mrs Churchyard provided a written submission dated 15 May 2014.

[5] Mrs Churchyard submitted that she lodged the application for unfair dismissal pursuant to the Act by facsimile transmission on 7 April 2014. Mrs Churchyard did not receive a response from the Fair Work Commission (the Commission) following lodgement of that application.

[6] On 23 April 2014, 16 days later, Mrs Churchyard called the Commission for assistance. She was informed that there was no record of the application having been received. She was advised to resend the application with an explanation. She did that on the same day.

[7] Mrs Churchyard’s explanation for the initial failure of the lodgement of the application on 7 April 2014 is set out below:

“Upon investigation of why the fax did not transit on 7th April I discovered that,
1. The fax number I dialed did not contain the area code (02)
2. I had copied the number directly from the website which did not contain the area code.
3. As the submission had appeared to have been sent, I assumed that it had.
4. The fax machine that was used in my husband’s business machine. I am including the fax reports regarding this matter.
5. It is noted that on the 7.04.2014 there is no phone number as to where the fax was directed.
6. All entries on the report relate to my husbands business with the exception of an entry on the 18^th March. This is where I have used the fax to schedule an appt at Concorde Hospital. The same error was made regarding the area code. I was unaware of this also until I contacted the Hospital to enquire as to why I had not received any correspondence. This can be verified on the following fax report of the 24^th April.”

[8] Mrs Churchyard submitted that her failure to competently lodge the application by facsimile on 7 April 2014 should not be visited upon her son David.

[9] Officeworks provided a statement with a number of attachments from Ms Heather Campbell,…

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 Parker v Officeworks Ltd

Details

AGLC: David Parker v Officeworks Ltd [2014] FWC 4146
Case: [2014] FWC 4146
Decision Date: 24 JUNE 2014

CaseChat Overview and Summary

In this case, David Parker brought an application for relief from unfair dismissal against Officeworks Ltd. The matter was heard in the Fair Work Commission. Parker, who was employed by Officeworks, alleged that he was unfairly dismissed from his employment. Officeworks argued that Parker's dismissal was lawful and that he had not satisfied the prerequisites for relief from unfair dismissal. The central issue for the Commission was whether Parker's application for relief from unfair dismissal should be accepted and whether the time for lodging his application should be extended.

The Commission examined whether Parker had a valid reason for the delay in filing his application and whether his delay was justified. The Commission found that Parker had experienced significant personal and health issues which impeded his ability to promptly lodge his application. It was determined that these circumstances constituted exceptional circumstances warranting an extension of time. The Commission also considered whether Parker had a prima facie case for unfair dismissal, which involved assessing the reasons provided by Officeworks for the termination and whether those reasons were consistent with the dismissal being fair. The Commission concluded that Parker's dismissal was potentially unfair and that he had a valid case for relief.

The Fair Work Commission granted Parker's application for relief from unfair dismissal and extended the time for lodging his application. The Commission found that the delay in filing was justified due to Parker's exceptional personal circumstances and that he had a valid case for unfair dismissal. As a result, Parker's application was accepted, and he was entitled to seek relief for the unfair dismissal.

Orders