Foki Tokomaata v Owen Pacific Workforce Pty Ltd - [2023] FWC 2434

[2023] FWC 2434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Foki Tokomaata
v

Owen Pacific Workforce Pty Ltd

(U2023/2460)

COMMISSIONER SCHNEIDER

PERTH, 20 SEPTEMBER 2023

Application for an unfair dismissal remedy

On 30 March 2023, Foki Tokomaata (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Owen Pacific Workforce Pty Ltd (the Respondent).

The Respondent objects to the application on the ground that the Applicant was not dismissed or, in the alternative, that the application has been made out of time.

Before considering the merits of the application, the Commission must be satisfied that the Applicant has been dismissed and that the application was not made out of time.

This decision contemplates both of the Respondent’s objections.

In the usual circumstances, the Commission would not consider an objection that an applicant has not been dismissed until after considering whether the application was lodged within time. However, to do so, it is necessary to ascertain the date that dismissal took effect. The matter currently before the Commission contains significant contention regarding the date the Applicant’s employment ceased. Therefore, I have discussed the Respondent’s not dismissed objection in so far as it is relevant to the matters to be determined.

In this matter, the Respondent asserts that no dismissal has taken place as the Applicant was employed under a contract for a specified duration. I have concluded that this objection is weak, for reasons explained below.

The remainder of the decision addresses the relevant considerations in section 394(3) of the Act in the context of the current application.

To provide context to the matter at hand, as there are several references made to individuals and organizations related to the Applicant’s employment who are not the Respondent, it is helpful to note the following facts:

· The Applicant hails from Tonga.

· The Applicant was employed by the Respondent under the Australian Government’s Seasonal Worker Program.

· The Applicant completed various manual tasks on farms in rural Australia.

· The farms on which the Applicant worked and accommodation in which she lived, although clearly organized as a result of her employment, were controlled by third parties and not directly by the Respondent.

· There are several organizations that, in some capacity, have involvement with, or offer services related to, the employment of migrant workers in Australia that have had some form of connection to this matter.

Legislation

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at…

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: [2023] FWC 2434
Decision Date: 20 SEPTEMBER 2023

CaseChat Overview and Summary

Foki Tokomaata filed an application for unfair dismissal against Owen Pacific Workforce Pty Ltd under section 394 of the Fair Work Act 2009. The Applicant, a seasonal worker from Tonga, alleges she was unfairly dismissed from her employment with the Respondent. The Respondent contends that the application was filed out of time and that the Applicant was not dismissed because she was employed under a contract for a specified duration. The Fair Work Commission (Commission) must first determine whether the application was made within the 21-day time limit and whether the Applicant was dismissed. The Commission held that the Applicant's employment likely ceased on 31 December 2022. However, the confusion surrounding the end of employment, coupled with the Applicant's limited English proficiency, contributed to the delay in filing the application. The Commission considered various factors, including the reason for the delay, the Applicant's awareness of the dismissal, actions taken to dispute the dismissal, and the merits of the application. Although the Commission found exceptional circumstances, it was not satisfied that these circumstances excused the lateness of the application. The Commission granted a partial extension of time, allowing the application to be filed until 23 February 2023. However, as the application was still filed beyond this extended period, the Commission dismissed the Applicant's application for unfair dismissal remedy.

Orders