Gajendran Prabhakaran v A.C.P. Industries Pty Ltd - [2024] FWC 704

[2024] FWC 704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gajendran Prabhakaran
v

A.C.P. Industries Pty Ltd

(U2024/533)

COMMISSIONER SCHNEIDER

PERTH, 18 MARCH 2024

Application for an unfair dismissal remedy

Mr Gajendran Prabhakaran (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 he had been unfairly dismissed from his employment with A.C.P. Industries Pty Ltd (the Respondent).

The Respondent objects to the application on the grounds that it appears to have been lodged outside of the statutory timeframe. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

A Hearing regarding the out of time issue was held. At the Hearing, the Applicant gave evidence on his own behalf. The Respondent did not present any witnesses, as they did not file any materials in compliance with the Commission’s directions.

Pursuant to section 590(2) of the Act, the following individuals were ordered to attend for the purposes of being subject to questioning in regard to the events surrounding the Applicant’s dismissal:

· Mr Wayne Harding (Mr Harding), Employee (Butcher) of the Respondent.

· Mr Michael Harvey (Mr Harvey), Employee (Assistant Manager) of the Respondent.

· Ms Jennifer Jacomelli (Ms Jacomelli), Employee (Manager) of the Respondent.

Dismissal date

Relevant Law

Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…
(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3)…”

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

The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

The parties are in dispute about when the dismissal took effect.

Submissions and Evidence

The Applicant filed submissions in the Commission on 13 February 2024.

The Applicant received directions from Chambers on 6 February 2024, which outlined the below:

“The Applicant is directed to file in the Commission, and serve on the other party, the following materials in support of the Commission granting an extension of time in which to make the application:

a) Outline of Submissions.
b) Written statements of evidence for any witnesses to be called, including the Applicant.
c) Copies of any supporting documents.

These must be filed and served by 4:00pm 13 February 2024.”

Many of the other points raised by the Applicant in…

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: [2024] FWC 704
Decision Date: 18 MARCH 2024

CaseChat Overview and Summary

The applicant, Mr Gajendran Prabhakaran, made an application to the Fair Work Commission for an unfair dismissal remedy, alleging that he had been unfairly dismissed from his employment with A.C.P. Industries Pty Ltd. The respondent objected to the application on the grounds that it was lodged outside the statutory timeframe. The Commission was required to consider whether the application was made out of time before assessing the merits of the application. The Commission held a hearing to consider the objection. The Commission found that the applicant was aware of his dismissal at the time it took effect. The application was not made within 21 days of the dismissal date. The Commission then considered whether there were exceptional circumstances justifying an extension of time. The Commission found that the absence of written confirmation of the dismissal and the applicant's unsuccessful attempts to contact the employer regarding the dismissal did not constitute exceptional circumstances. The Commission was not satisfied that there were exceptional circumstances warranting an extension of time. The applicant's application for an unfair dismissal remedy was dismissed. The Commission issued an order to that effect.

Orders