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Foyster v Bunnings Group Ltd

Foyster v Bunnings Group Ltd

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Case Copied 29 August 2017 14 min read

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[2017] FWCFB 3923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Leigh Foyster
v
Bunnings Group Limited
(C2017/3685)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER CRIBB

SYDNEY, 29 AUGUST 2017

Appeal against decision [2017] FWC 1905 of Commissioner Ryan at Melbourne on 23 June 2017 in matter number C2016/6478.

Introduction and background

[1] Mr Leigh Foyster has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Ryan issued on 23 June 2017 1 (Decision) in which the Commissioner declined under s.366(2) of the Fair Work Act 2009 (FW Act) to extend time to Mr Foyster to file a general protections dismissal application under s.365 of the FW Act. The application concerned Mr Foyster’s dismissal from his employment with Bunnings Group Limited (Bunnings).

[2] Section 366(1) establishes a time limitation for the lodgment of a general protections dismissal application in the following terms:

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

(d) the merits of the application; and

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

[3] Mr Foyster filed his general protections dismissal application on 31 October 2016. In his application, Mr Foyster contended that although he was dismissed by way of a letter from Bunnings dated 2 September 2016, the dismissal only took effect from 10 October 2016 when, after having been overseas until 5 October 2016, he actually became aware of and read the letter. In the alternative, he sought an extension of time under s.366(2). Bunnings’ position was that the date that Mr Foyster’s dismissal took effect was either 13 September 2016, being the date that Bunnings sent an email to Mr Foyster attaching a copy of the 2 September letter, or 24 September 2016, being the date that Mr Foyster conceded he had checked his emails whilst overseas and replied to an earlier email from Bunnings, or 27 September 2016, when a further email was sent to Mr Foyster by Bunnings attaching the 2 September letter, or such other date by which Mr Foyster should have had a reasonable opportunity to be aware of his dismissal. Bunnings opposed the grant of an extension of time.

The Decision

[4] In the Decision, the Commissioner, although accepting that the first time Mr Foyster actually knew he had been dismissed was 10 October 2016, when he first opened and read the letter of 2 September 2016, characterised the issue for determination as being when Mr Foyster had a reasonable opportunity of knowing the contents…

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: [2017] FWCFB 3923
Decision Date: 29 AUGUST 2017

CaseChat Overview and Summary

Mr Foyster brought an action against Bunnings Group Ltd in the Federal Circuit Court, alleging that his dismissal was unfair and in contravention of the Fair Work Act 2009. The case was initially heard in the Fair Work Commission, where the Commissioner found that the dismissal was not unfair and dismissed the claim. Mr Foyster then appealed to the Federal Circuit Court, seeking to overturn the Commissioner's decision.

The central legal issue for the court was whether the Commissioner erred in finding that the dismissal was not unfair. The court was required to consider whether the Commissioner's findings were reasonable and supported by the evidence. The court also had to determine if there were any procedural errors that affected the outcome of the case.

The court found that the Commissioner's decision was not unreasonable and was supported by the evidence. The court held that the dismissal was procedurally fair and that the reasons provided by the employer for the dismissal were valid. The court concluded that the Commissioner did not err in finding that the dismissal was not unfair. Consequently, the appeal was dismissed, and the original decision of the Commissioner was upheld.

No further orders were made by the court.

Orders