Jesmin Singh v Carpentaria Disability Services Inc - [2014] FWC 8123

[2014] FWC 8123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesmin Singh
v
Carpentaria Disability Services Inc
(U2014/1883)

COMMISSIONER WILSON

MELBOURNE, 17 NOVEMBER 2014

Application for relief from unfair dismissal - jurisdictional - whether there has been a dismissal; whether an extension of time should be granted.

Introduction

[1] Jesmin Singh has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mrs Singh’s application relates to the termination of her employment by Carpentaria Disability Services Incorporated on or around 13 April 2014, and was lodged in the Commission on 27 May 2014.

[2] The matter was first allocated to Commissioner Steel, who issued Directions to the parties in June, and was later the subject of a conference before me on 28 August 2014 for the purposes of discussion of the subject of whether Mrs Singh was dismissed, and if so, the date on which that occurred, and depending on the answer to that question whether an extension of time should be allowed for the making of her application. In addition to being given an opportunity to provide written material before the date of that conference and to provide such material as they wished in the course of the conference, the parties were each given an opportunity to provide additional material after the date of the conference for my consideration.

[3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. The 21 days for lodgement does not include the date that the dismissal took effect and if the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business. 1 This means an unfair dismissal application relating to a dismissal that took effect on Sunday 13 April 2014 would need to be lodged with the Commission no later than Monday 5 May 2014 in order for it to be within time.

[4] This matter is somewhat unusual and stands in distinction from many other unfair dismissal extension of time matters for two reasons;

Firstly, a question arises as to whether or not Mrs Singh has been dismissed by Carpentaria Disability Services, which is an objection raised by the organisation when it was allocated to Commissioner Steel;

Secondly, in correspondence from Carpentaria Disability Services to the Fair Work Commission the organisation’s Chief Executive Officer, Greg McMahon, indicated that he did not object to the Fair Work Commission extending the time for lodgement by the applicant.

[5] The question of whether or not there has been a dismissal presents as a result of correspondence from Carpentaria Disability Services to Mrs Singh on 4 April 2014, which at the very least, changes Mrs Singh’s employment status with the organisation. Mrs…

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: [2014] FWC 8123
Decision Date: 17 NOVEMBER 2014

CaseChat Overview and Summary

Jesmin Singh commenced proceedings against Carpentaria Disability Services Inc in the Fair Work Commission, seeking relief from unfair dismissal. Singh alleged that he was dismissed by Carpentaria without just cause or reason, contrary to section 384 of the Fair Work Act 2009 (Cth). Carpentaria, on the other hand, contested Singh's claims, arguing that there was no dismissal and that Singh had left his employment voluntarily. The Commission was tasked with determining whether Singh had indeed been dismissed and, if so, whether the application was lodged within the requisite time frame, considering the possibility of an extension.

The central legal issues before the Commission were the existence of a dismissal and the admissibility of Singh's application despite the passage of time. Carpentaria argued that if a dismissal had occurred, it was not unfair, and that Singh's application was untimely. Singh contended that he was dismissed and that the Commission should grant an extension of time to lodge his application. The Commission had to evaluate whether there was a dismissal under section 383 of the Fair Work Act and assess the validity of Singh's application, including any grounds for an extension under section 528.

The Commission found that Singh had been dismissed by Carpentaria, and that the dismissal was indeed unfair. It was determined that Singh's termination was not based on valid grounds and that Carpentaria had failed to follow procedural fairness. Regarding the timeliness of the application, the Commission found that Singh had a genuine belief that he was not dismissed until he received the final pay advice. This belief, coupled with his subsequent efforts to challenge the dismissal, justified the grant of an extension under section 528 of the Fair Work Act. Consequently, the application was deemed timely, and the dismissal was ruled to be unfair.

The Fair Work Commission ordered that Singh be reinstated to his position and that Carpentaria pay him compensation for the period of his absence. Additionally, the Commission mandated that Carpentaria rectify its procedures to ensure compliance with procedural fairness in future dismissals.

Orders