DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Bradley
v
Derwent Valley Council
(U2019/3532)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 APRIL 2019

Application under s.586 to amend an application for the Commission to deal with an unlawful termination dispute under s.773 so as to proceed as an application for an unfair dismissal remedy under s.394 – application granted.

[1] Mr John Bradley says he commenced employment with the Derwent Valley Council (DVC) on 27 July 1998 and that in 2018, he had a number of employment disputes with his employer. These, he says, resulted in him retaining the law firm Ogilvie Jennings in or around August 2018. Acting on Mr Bradley’s behalf was Mr Nicholas Edmondson from that firm.

[2] As things transpired, Mr Bradley’s employment was terminated by DVC, with termination taking effect on 21 December 2018. This was confirmed via a termination letter emailed to Mr Edmondson on the same day. Following receipt of the termination letter, Mr Edmondson sent Mr Bradley an email which stated:

“I advise that you have 21 days from today to file an application for unfair dismissal. I note that there is no extension of time that can be granted and the time limit includes the Christmas period.

If you intend to lodge an application I will need urgent instructions in the New Year. You must file an application by 11 January 2019.”

[3] Shortly after, Mr Edmondson received a reply from Mr Bradley’s support person, Mr Stephen Mackey stating, “John will be lodging a claim for unfair dismissal.”

[4] On Thursday 10 January 2019, Mr Edmondson received a draft copy of Mr Bradley’s unfair dismissal application, which Mr Edmondson perused and amended.

[5] On Friday 11 January 2019, Mr Edmondson telephoned Mr Bradley about his unfair dismissal application. A file note recording this conversation indicated that Mr Bradley had instructed Mr Edmondson to “just make sure [the] application is in”.

[6] Mr Edmondson said that having received this instruction, he directed his legal assistant, Ms Sandra White, to lodge an unfair dismissal application using the Fair Work Commission’s (the Commission) Online Lodgment Service (OLS) later that day. Ms White subsequently submitted an application (the Application) through the OLS using a Form F2 –Unfair dismissal application form (Form F2) and received a confirmation email at 4:54PM advising that the Application had been received. An attachment to the confirmation email specified the following “Lodgment details”:

“Lodgment details

Lodgment date: 11/01/2019

Lodgment time: 4:54 PM AEDT

State: TAS

Reference number: 65501

Matter classification

Category: Dismissal

Code: Dismissal

Type: s.773 – Application to deal with an unlawful termination dispute (Form F9)”

[7] The Application was given the Commission matter number C2019/393.

[8] Ms White said that she received a telephone call from a staff member of the Commission on Monday 14 January 2019 advising that the Application had been lodged as an application for “Unlawful Termination” instead of “Unfair Dismissal”. The file note of the Commission Staff member from…

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: [2019] FWC 2208
Decision Date: 3 APRIL 2019

CaseChat Overview and Summary

John Bradley brought a claim against Derwent Valley Council, seeking relief for an alleged unlawful termination of employment. The Fair Work Commission was initially asked to consider the dispute under the unfair termination provisions of the Fair Work Act 2009 (Cth). Subsequently, Mr Bradley applied to amend his application to seek relief under the unfair dismissal provisions instead. The Federal Circuit and Family Court of Australia had to decide whether this amendment was permissible under the relevant sections of the Act.

The court had to determine whether Mr Bradley's application could be amended to seek relief under the unfair dismissal provisions when the initial application was made under the unfair termination provisions. This involved interpreting sections 586, 773 and 394 of the Fair Work Act 2009 (Cth) to see if the change in the basis of the claim was allowable within the legislative framework. The court also needed to consider if the amendment would cause any prejudice to the respondent, Derwent Valley Council.

The court found that the amendment was permissible and did not prejudice the respondent. It concluded that the change from an unfair termination claim to an unfair dismissal claim was within the scope of the provisions allowing for amendments to applications. The court noted that the legislative intent was to provide flexibility in the proceedings and that prejudice to the respondent was not evident in this case. As a result, the court granted the application to amend the basis of the claim.

The Federal Circuit and Family Court of Australia granted Mr Bradley's application to amend his claim. The court ordered that the application proceed as an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). This decision allowed Mr Bradley to pursue his claim under the appropriate legislative provision, ensuring that the dispute was dealt with in accordance with the correct legal framework.

Orders