Declan Briggs v Workcon (Qld) Pty Ltd - [2023] FWC 2242

[2023] FWC 2242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Declan Briggs
v

Workcon (Qld) Pty Ltd

(C2023/2630)

COMMISSIONER HUNT

BRISBANE, 4 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – application made out of time – no exceptional circumstances – application dismissed.

On 9 May 2023, Mr Declan Briggs made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by Workcon in contravention of the general protection provisions of the Act. Despite Mr Briggs’ objections, I considered it necessary to make a name change order to correct the name of the respondent to Workcon (Qld) Pty Ltd (the Respondent) as I am satisfied that is the true name of the employer.

Mr Briggs claimed that he was dismissed by the Respondent on 31 October 2022. The Respondent denies that Mr Briggs was dismissed on this date or at all. The Respondent’s position is that Mr Briggs did not respond to any more requests to attend for work after this time.

Accordingly, there are two jurisdictional issues for consideration before the Fair Work Commission (the Commission); firstly, should an extension of time be granted to Mr Briggs, and if the answer is yes, secondly, has Mr Briggs been dismissed?

Section 366 of the Act states:

“366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

For Mr Briggs to have made his application within the statutory time limit of 21 days after he asserts the dismissal took effect, the application needed to have been filed by 21 November 2022. The application has been made 196 days out of time.

Mr Briggs seeks an extension of time within which to make his application.

Earlier unfair dismissal application

Mr Briggs made an unfair dismissal application to the Commission in matter U2022/11083. Commissioner Simpson was allocated that matter and on 2 March 2023, convened a Directions Hearing by telephone on account of his preliminary view that Mr Briggs had not completed a period of six months of employment with the Respondent and would not satisfy the minimum employment period to bring an unfair dismissal claim.

Mr Briggs appeared at that Directions Hearing and was supported by his mother, Ms Vanessa Walker. Mr Briggs is 19 years old. Towards the end of the Directions Hearing, the Commissioner determined that he was satisfied that the minimum employment period had not been…

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 Declan Briggs v Workcon (Qld) Pty Ltd

Details

AGLC: Declan Briggs v Workcon (Qld) Pty Ltd [2023] FWC 2242
Case: [2023] FWC 2242
Decision Date: 4 SEPTEMBER 2023

CaseChat Overview and Summary

Declan Briggs applied to the Fair Work Commission for an extension of time in which to bring a general protections application against his former employer, Workcon (Qld) Pty Ltd, claiming that he had been dismissed. The Fair Work Act 2009 requires such applications to be brought within 21 days of the dismissal taking effect. Mr Briggs applied on 9 May 2023, 196 days after the dismissal he claims occurred. The Commission was required to determine whether Mr Briggs had shown exceptional circumstances to warrant an extension of time. The Commission concluded that while Mr Briggs had taken some action to contest his dismissal by bringing a previous application, there were no exceptional circumstances warranting an extension of time. The application was dismissed.

Orders