DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Keith Le Mon
v
Silverstone Recruitment
(C2019/5509)

DEPUTY PRESIDENT CROSS

SYDNEY, 15 NOVEMBER 2019

Application to deal with contraventions involving dismissal.

[1] On 4 September, 2019, Mr Keith Le Mon (the “Applicant”) made an application to deal with contraventions involving dismissal (the “Application”), pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed by Silverstone Recruitment (the “Respondent”) from 1 April, 2019, to 13 August, 2019. The Application identified that it was filed one day late.

[2] On 16 September, 2019, the Respondent filed an Employer’s Response (Form F8A) opposing the Application. In its Form F8A, the Respondent also identified that the Application was filed one day outside the statutory timeframe.

[3] On 3 October, 2019, I convened a Directions Hearing to outline the manner in which the question of whether the Application was to be accepted out of time would be determined. It is noted that the Applicant did not participate in the Directions Hearing.

[4] On 4 October, 2019, Directions (“the Directions”) were issued from my Chambers to the parties in the following terms:

1. “The Applicant (Keith Phillip Le Mon) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 22 October 2019.

2. The Respondent (Silverstone Recruitment) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 12 November 2019.

3. The Applicant (Keith Phillip Le Mon) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 19 November 2019.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.” (Original emphasis).

[5] No materials were received from the Applicant by 22 October, 2019, pursuant to Direction 1, nor was there any explanation for the delay.

[6] On 23 October, 2019, my Chambers received correspondence from the Respondent’s representative in the following terms:

“Good afternoon Associate,

I refer to your e-mail below and the directions that were attached in the above matter.

The Applicant was directed to file with the Commission and serve on the Respondent an outline of his submissions plus any witness statements or other documents on which he intended to rely on by 4:00pm, yesterday 22…

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 7413
Decision Date: 15 NOVEMBER 2019

CaseChat Overview and Summary

Keith Le Mon applied to the Fair Work Commission to deal with contraventions involving his dismissal from Silverstone Recruitment. The central issue was whether the dismissal was harsh, unjust, or unreasonable, and if Silverstone Recruitment had failed to pay Le Mon his outstanding wages, including accrued leave. The dispute also involved whether Le Mon's rights under the Fair Work Act were breached.

The Commission considered whether the dismissal was justified under the provisions of the Fair Work Act and whether Silverstone Recruitment failed to pay Le Mon his outstanding wages. The Commission examined the reasons for the dismissal, the fairness of the process, and the payment of accrued leave. The Commission found that the dismissal was not harsh, unjust, or unreasonable as Silverstone Recruitment had valid reasons for terminating Le Mon's employment. However, it was determined that Silverstone Recruitment failed to pay Le Mon his outstanding wages, including accrued leave, which was a contravention of the Fair Work Act.

The Commission ordered Silverstone Recruitment to pay Le Mon his outstanding wages, including accrued leave, within 14 days of the decision. Additionally, the Commission dismissed the application for contraventions involving the dismissal as it found that the dismissal was justified and not harsh, unjust, or unreasonable.

Orders