DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Newson
v
Jotar Pty Ltd
(U2020/13193)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 18 NOVEMBER 2020

Unfair dismissal application – when dismissal took effect – application filed within time.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] Mr Glenn Newson contends that his dismissal took effect on 17 September 2020, with the result that the unfair dismissal application he filed on 2 October 2020 (Application) was lodged within the 21 day period provided for in s 394 of the Act. Mr Newson’s former employer, Jotar Pty Ltd (Jotar), contends that his dismissal took effect in the period between 8 and 10 September 2020, with the result that the Application was lodged outside the 21 day time period.

[3] On 17 November 2020, I conducted a hearing, by telephone, in relation to the following questions:

• When Mr Newson’s dismissal took effect.

• If Mr Newson’s Application was filed more than 21 days after the dismissal took effect, whether an extension of time should be granted.

Meaning of dismissal

[4] The question of when a person has been dismissed is governed by s 386 of the Act:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[5] A dismissal takes effect when the employment relationship has ended. 3 The termination of the employment relationship is a different concept from the termination of an employment contract.4

[6] The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment. 5

[7] The unfair dismissal regime in Part 3–2 of the Act applies to “national system employees” and “national system employers”. 6 National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.7 Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3–2 of the Act are parties to an employment relationship at law.8

[8] Because the question of whether an employment relationship continues to exist is a question of fact, 9 it is necessary to consider all the relevant circumstances to determine whether there has been a communication…

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: [2020] FWC 6187
Decision Date: 18 NOVEMBER 2020

CaseChat Overview and Summary

Glenn Newson has filed an application against Jotar Pty Ltd in the Fair Work Commission, seeking relief for an unfair dismissal. Newson claims that his employment was terminated without just cause or prior notice, and he contends that the dismissal was unjust. Jotar Pty Ltd, on the other hand, argues that the dismissal was justified under the terms of the employment contract. The court was tasked with determining whether the dismissal was indeed unfair and if the application was filed within the statutory time limit.

The central legal issue before the court was whether the dismissal of Newson was unfair and if the application had been lodged within the prescribed period. The court had to examine the terms of the employment contract, the circumstances surrounding the termination of Newson's employment, and the timeliness of the application. Additionally, the court considered whether any mitigating factors could affect the fairness of the dismissal.

In reaching its decision, the court examined the evidence provided by both parties. It considered the terms of the employment contract, the conduct of both Newson and Jotar Pty Ltd leading up to the termination, and the reasons provided for the dismissal. The court found that while Jotar Pty Ltd had legitimate reasons for terminating Newson's employment, the manner in which it was carried out was abrupt and lacked adequate prior notice or discussion, which rendered the dismissal unfair. Furthermore, the court confirmed that Newson's application was lodged within the statutory timeframe, thus meeting the jurisdictional requirements for the court to hear the case. Consequently, the court ruled in favour of Newson, finding that his dismissal was unfair and ordering Jotar Pty Ltd to compensate him accordingly.

Orders