Jackson Desira v Acciona Rail Pty Ltd - [2024] FWC 477

[2024] FWC 477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jackson Desira
v

Acciona Rail Pty Ltd

(C2023/7691)

COMMISSIONER YILMAZ

MELBOURNE, 22 APRIL 2024

Application to deal with contraventions involving dismissal – whether application lodged out of time – lodged out of time - whether there are exceptional circumstances to allow for a further period for the Applicant to make the application - extension of time denied – Application dismissed.

On 8 December 2023, Mr Jackson Desira (Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in relation to allegations by the Applicant that he was dismissed from employment by Acciona Rail Pty Ltd (Acciona or Respondent) in contravention of the General Protections provisions in Part 3-1. Mr Desira commenced employment as a safety adviser on 29 May 2022 and alleges that his dismissal took effect 17 November 2023. Acciona contend that the dismissal took effect on 16 November 2023, so the application is one day late of the statutory 21-day time frame.

Mr Desira submits that his application is not out of time. While a meeting was held on 16 November 2023 to discuss the outcome of a review of his performance, he submits that his employment was terminated the following day when he received a letter of termination, and on that basis, he contends that the dismissal took effect on 17 November.

Acciona filed a response to the application on 16 January 2024 and raised a jurisdictional objection that the application had been made out of time.

This decision deals with the date of dismissal as a threshold matter because if I find the application was made within the statutory timeframe, it will not be necessary to consider whether an extension of time should be granted.

Both parties sought leave to be legally represented, both were granted leave. The Applicant was represented by Mr Twomey, Counsel and Ms Neale of Baraka Lawyers. The Respondent was represented by Mr Fleeton of K&L Gates.

Mr Desira gave sworn evidence on his own behalf. For the Respondent, the following witnesses gave evidence:

Ms Julia Grbac, Head of People and Capability
- Ms Bettina Monello, Senior Human Resources Business Partner
- Mr Kevin Mercer, Project Director, Somerton Intermodal Terminal Project

The Applicant’s submissions

Mr Desira commenced employment on 31 May 2022 as a Safety Coordinator on the Level Crossing Removal Project – Southern Program Alliance on 31 May 2022. On 29 May 2023 he transferred to the Somerton Intermodal Terminal (SIT) Project. Between 1 August and 19 September 2023, he took a period of parental leave. He submits that on his return to work he was treated less favourably. He submits that antagonism from the leadership team and failure to reintegrate him into the team following changes to the team was discrimination relating to the period of parental leave and a contravention of s.351 of the Act. He further submits an investigation into alleged breaches of health…

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.

Keep reading for free

Create a free CaseChat account to read Jackson Desira v Acciona Rail Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 477
Decision Date: 22 APRIL 2024

CaseChat Overview and Summary

Jackson Desira filed an application under section 365 of the Fair Work Act 2009 against Acciona Rail Pty Ltd, alleging wrongful dismissal. The dispute centred on the date of dismissal and whether the application was lodged within the 21-day statutory period. Desira claimed that his dismissal took effect on 17 November 2023, while Acciona argued that it occurred on 16 November 2023, making the application one day late. The primary issue for the Fair Work Commission to decide was whether the application was made within the statutory timeframe and if not, whether exceptional circumstances warranted an extension of time. The Commission also had to determine the date of dismissal. Commissioner Yilmaz concluded that the dismissal occurred on 16 November 2023, when Desira was informed in clear and unambiguous terms that his employment was terminated. Desira was aware of the dismissal, as evidenced by his actions and expectations following the meeting. The Commission found that the application was one day late and denied the request for an extension of time, concluding that there were no exceptional circumstances to warrant an extension. The reasons for delay, actions taken to dispute the termination, prejudice to the employer, merits of the application, and fairness between Desira and other persons in a like position were all considered, with no exceptional circumstances found. The application was dismissed, and an order to that effect will be issued with the decision.

Orders