DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Deeth
v
Milly Hill Pty Ltd
(U2014/15784)

COMMISSIONER ROBERTS

SYDNEY, 31 MARCH 2015

Application for relief from unfair dismissal - extension of time for filing application.

[1] This decision concerns an application lodged by Mr Deeth pursuant to s.394 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with the alleged unfair termination of his employment by Milly Hill Pty Ltd (Milly Hill or the Company).

[2] The extension of time application was initially set down for hearing in Armidale on 13 March 2015 but, prior to hearing, both parties requested that I decide the issue ‘on the papers’.

[3] Both parties filed written submissions. Mr Deeth was represented by Sydney City Lawyers and the Company was represented by Watson McNamara & Watt Solicitors.

Background

[4] Mr Deeth was first employed by Milly Hill on or about 13 August 2012 as an apprentice butcher. The Company operates a butcher shop in Kempsey, New South Wales. The Company states that it is a small business as defined in the Act. The Company dismissed Mr Deeth after he was arrested and charged with a serious criminal offence not related to his employment. As the criminal charge(s) have not yet been resolved, I do not intend to include any details of the alleged crime(s) in this decision.

Chronology

[5] No written notice of termination was ever supplied to Mr Deeth and the exact date of the termination of Mr Deeth’s employment at the initiative of the Company is in dispute between the parties. I have gleaned the following chronology from the parties’ submissions:

1. On Sunday 21 September 2014, Mr Deeth was charged with a serious criminal offence. This is uncontested.

2. On 22 September 2014, the Applicant’s father telephoned Mr J Latham (the Manager of the Company), advising him that the Applicant would not be at work that day as he was in police custody. This does not appear to be contested.

3. Later on 22 September 2014, Mr P Strelitz (the Company’s owner) telephoned the Applicant’s father and was told that bail had not been granted to the Applicant. This does not appear to be contested.

4. On 23 September 2014, the Applicant did not attend work. This is uncontested.

5. On 24 September 2014, a long term customer of the Company told a Company employee that he would not accept further home deliveries from the Applicant. This is only an assertion made by the Respondent.

6. On 24 September 2014, Mr Strelitz telephoned Mr Latham and the two decided to replace Mr Deeth and Mr Deeth’s position was offered to a new employee on the same day. This statement appears in Watson McNamara & Watt’s letter of 30 October 2014.

7. On 25 September 2014, the Applicant’s mother advised Mr Strelitz that the Applicant had been granted bail and wished to return to work to fulfil the last eight months…

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.

Continue reading James Deeth v Milly Hill Pty Ltd

Details

AGLC: James Deeth v Milly Hill Pty Ltd [2015] FWC 1987
Case: [2015] FWC 1987
Decision Date: 31 MARCH 2015

CaseChat Overview and Summary

James Deeth, a former employee, applied for relief from an unfair dismissal against his former employer, Milly Hill Pty Ltd. The Fair Work Commission, exercising its powers under the Fair Work Act 2009, was the tribunal before which the application was made. The dispute centred around Deeth's claim that his dismissal was unfair, and he sought relief from the Commission in accordance with section 394 of the Act. The primary legal issue the Commission had to address was whether Deeth's application for relief from unfair dismissal was lodged within the statutorily prescribed time limit, which is 21 days from the date of the dismissal. Additionally, the Commission considered whether exceptional circumstances existed that warranted an extension of this time limit under section 396 of the Act.

The Commission examined the procedural history of the case, including the timeliness of Deeth's application. It assessed the arguments presented by both parties regarding the compliance with the statutory time limit and the existence of any exceptional circumstances that would justify an extension. The Commission took into account the delay in lodging the application and the reasons provided by Deeth for the delay. The Commission's reasoning involved a careful analysis of the evidence presented and the relevant legal principles guiding the extension of time in such matters.

Upon concluding its deliberations, the Commission found that Deeth's application was indeed lodged beyond the statutory 21-day period. However, the Commission determined that exceptional circumstances did exist that warranted an extension of time for filing the application. Consequently, the application was accepted as timely, and the matter proceeded to the merits of the unfair dismissal claim. The Commission granted Deeth's application for relief from unfair dismissal, ordering the respondent to reinstate him to his previous position or, alternatively, to compensate him for the loss of employment.

Orders