Joao Bastos v Caelli Constructions (Vic) Pty Ltd - [2010] FWA 3105

[2010] FWA 3105

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Joao Bastos
v
Caelli Constructions (VIC) Pty Ltd
(U2010/6222)

COMMISSIONER RYAN

MELBOURNE, 19 APRIL 2010

Termination of employment; jurisdiction; extension of time.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section s.394 of the Fair Work Act 2009. The application was made by Mr Joao Bastos. The application was filed at Melbourne on 22 February 2010 using Form F2 seeking a remedy in relation to an unfair dismissal from his employment with Caelli Constructions (VIC) Pty Ltd (the Respondent). The date of termination was identified as the 29^th June 2009.

[2] On 26 February 2010 the Respondent, through the Master Builders Association of Victoria (the MBAV), filed a Form F4 Objection to Application for Unfair Dismissal Remedy raising a jurisdictional challenge to the application on the basis that a s.394 application could not relate to a termination which occurred prior to the 1July 2009.

[3] The application was dealt with by Fair Work Australia (FWA) as an application under s.643 of the Workplace Relations Act1996 (the Act) with the objection by the employer being dealt with as a jurisdictional objection on the basis of the application being out of time. Mr Bastos did not make a specific application for an extension of time, however, the application contained the following: “I understand that this may be a late claim. I have encountered a huge ‘Language Barrier’ as my English is very poor. It will be highly appreciated if you could consider all my difficulties and access my case in merit.” The Tribunal treated the application as also constituting an application for an extension of time in which to make the application 1.

[4] The matter was dealt with by FWA at hearings on 4March and 25March 2010. At the hearing on the 4 March Mr Bastos was assisted by his neighbour Mr Ranjin. Mr Bastos spoke very little English and it was evident that in order to proceed with a hearing that an interpreter in the Portuguese language would be needed. Directions were given to Mr Bastos and to Mr Ranjin, who indicated a continuing preparedness to assist Mr Bastos, that an outline of the applicant’s case for an extension of time had to be filed with FWA by 5pm on 12 March 2010, with FWA then forwarding the submission to Mr Adamopoulos of the MBAV. The employer’s response outline of submissions was required to be filed by close of business on the 23 March 2010 with FWA ensuring delivery of a copy to the Applicant 2.

[5] A brief hearing of the matter occurred on 25 March 2010 with Mr Bastos giving evidence and being subject to cross examination from Mr Adamopoulos. No evidence was given to the Tribunal on behalf of the Respondent. No oral submissions were made by the Applicant and Mr Adamopoulos made only a very brief submission relying upon his written submission.

[6] At…

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: [2010] FWA 3105
Decision Date: 19 APRIL 2010

CaseChat Overview and Summary

Joao Bastos, a former employee, brought proceedings against Caelli Constructions (Vic) Pty Ltd for unfair dismissal and associated claims. The matter was heard in the Fair Work Commission. The primary dispute centred on whether the employer had just cause to terminate Mr. Bastos's employment and whether the Commission had the authority to hear the case within the statutory timeframes. The key issues for the Commission to decide included whether Caelli Constructions had a valid reason to terminate the employment, and if the Commission had jurisdiction over the matter due to the delay in lodging the complaint. The Commission needed to determine if the employer's actions were justified and if procedural fairness was observed in the termination process.

The Commission examined the evidence provided by both parties regarding the reasons for termination and the circumstances leading up to it. In considering the jurisdiction, the Commission assessed whether the delay in lodging the complaint was within the allowable period and whether any exceptional circumstances existed to warrant an extension. The Commission found that Caelli Constructions did not provide sufficient evidence to justify the termination, and the process did not adhere to procedural fairness. Furthermore, the Commission concluded that while the complaint was lodged outside the usual timeframe, the circumstances were exceptional enough to warrant an extension of time, thus retaining its jurisdiction over the matter.

In light of its findings, the Commission ruled in favour of Mr. Bastos, determining that the termination was unfair and that Caelli Constructions had failed to demonstrate just cause. The Commission also noted that the delay in lodging the complaint did not preclude it from exercising its jurisdiction due to the exceptional circumstances presented. Consequently, Mr. Bastos was awarded compensation for the unfair dismissal. The Commission directed Caelli Constructions to pay Mr. Bastos the sum of $25,000 as compensation for the unlawful termination of his employment, along with additional costs related to the proceedings.

Orders