DECISION

Fair Work Act 2009
Section 394—Unfair dismissal

Jaspreet Bedi
v
Serco Australia Pty Ltd
(U2019/8964)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 29 NOVEMBER 2019

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application for re-opening – binding settlement agreement – re-opening not in interests of justice – application dismissed

[1] On 14 August 2019 Jaspreet Bedi (Mr Bedi or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal on 31 July 2018 by Serco Australia Pty Ltd (Serco or the employer) (the second application).

[2] Some 12 months earlier, on 7 August 2018, Mr Bedi made a similar application 1 concerning the same alleged dismissal (the first application). The first application was discontinued by Mr Bedi by notice dated 12 September 2018 following settlement discussions with the employer.

[3] There is a dispute over whether there was a dismissal and (if so) the date the alleged dismissal took effect. Mr Bedi says he was dismissed effective from 31 July 2018. The employer says Mr Bedi was removed from a casual employment roster (but not dismissed) from 6 July 2018. 2

[4] Mr Bedi’s second application has been filed 379 days after (he says) his dismissal took effect 3, being 358 days beyond the period of 21 days required by the FW Act for the making of such claims. For Mr Bedi’s second application to proceed he requires the Commission to grant an extension of time.4

[5] Mr Bedi seeks that extension or, in the alternative, re-opening of the first application. He contends that Serco failed to honour the settlement agreement that had been reached on the first application.

[6] Serco filed a form F3 employer response to the second application on 17 September 2019. It contended that Mr Bedi was ‘irregularly’ employed and removed from the pool of casual employees for a failure to meet Serco’s requirements. Serco raised two jurisdictional objections: that the second application was lodged out of time, and that Mr Bedi was not dismissed.

[7] Serco oppose an extension of time on the second application and, in the alternative, oppose re-opening the first application. It submits that no exceptional circumstances exist as to warrant an extension of time. It submits that the first application had been finally disposed of by both a binding settlement agreement and discontinuance, and that it would not be in the interests of justice for a settled application to be re-opened. Serco also foreshadows pursuing an application under section 399A(1)(c) of the FW Act should an extension of time be granted.

[8] This decision concerns these issues.

[9] I conducted a hearing by telephone on the application for an extension of time, and on re-opening, on 8 November 2019.

[10] In advance of the hearing, the Commission directed Mr Bedi to file materials in support of…

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 Jaspreet Bedi v Serco Australia 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: [2019] FWC 7797
Decision Date: 29 NOVEMBER 2019

CaseChat Overview and Summary

Jaspreet Bedi brought an application for unfair dismissal against Serco Australia Pty Ltd, which was heard in the Fair Work Commission. Ms Bedi alleged she was unfairly dismissed from her employment by Serco. The primary dispute centred on whether the dismissal was unjust and whether there were exceptional circumstances warranting an extension of time for the application, as well as whether the re-opening of the case was in the interests of justice given a prior binding settlement agreement. The Fair Work Commission was tasked with determining these issues based on the evidence and arguments presented by both parties.

The central legal issues before the Commission were whether the application for unfair dismissal remedy should be granted, if the time for lodging the application could be extended due to exceptional circumstances, and whether the re-opening of the case was justified considering the binding settlement agreement. The Commission had to assess the merits of the application, the validity of the reasons for any delay in filing, and the appropriateness of re-opening the matter in light of the prior agreement. The Commission was also required to consider whether the re-opening of the case would be in the interests of justice.

The Fair Work Commission found that there were no exceptional circumstances that warranted an extension of time for the application. The Commission noted that the reasons for the delay were not compelling enough to warrant an extension. Additionally, the Commission held that re-opening the case was not in the interests of justice, as it would undermine the binding nature of the prior settlement agreement. The Commission concluded that the application for unfair dismissal remedy should be dismissed. The Commission was of the view that the prior settlement agreement, which had been duly executed and was binding on both parties, should not be revisited.

The Fair Work Commission dismissed the application for unfair dismissal remedy. It ruled that there were no exceptional circumstances to extend the time for the application and that re-opening the case was not in the interests of justice. Consequently, the application was dismissed in its entirety.

Orders