DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Keith Long
v
Keolis Downer T/A Yarra Trams
(U2018/2465)

COMMISSIONER MCKINNON

MELBOURNE, 4 MAY 2018

Application for an unfair dismissal remedy - extension of time.

Introduction

[1] Mr Keith Long worked at Keolis Downer T/A Yarra Trams for approximately 12 years. On 9 March 2018, he applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).

[2] Application for an unfair dismissal remedy must be made within 21 days after the dismissal “took effect”, or if there are exceptional circumstances, such further period as the Commission allows. 1

[3] The effective date of dismissal is in dispute. Yarra Trams says Mr Long was dismissed on 2 November 2017 and his application is 106 days late. It objects to the application and opposes any extension of time. Mr Long says his employment was terminated on 5 February 2018 and his application is 11 days late. He asks that an extension of time be granted.

[4] Mr Long filed materials in support of his application for an extension of time on 11 April 2018. Yarra Trams did not file any material other than the Form F3 Employer Response on 20 March 2018.

[5] On 20 April 2018, I heard the application for an extension of time. Mr Long was represented by Wisewould Mahony Lawyers and he and his wife gave evidence on his behalf. Ms Alexandra Marriott appeared by telephone for Yarra Trams and did not call any witnesses.

Effective date of dismissal

[6] On 2 November 2017, Yarra Trams wrote to Mr Long as follows:

“Following the investigation outcome meeting on 2 November 2017, I confirm Yarra Trams' decision to terminate your employment with effect from 2 November 2017.

As discussed, the reason for the termination of your employment is due to serious safety breaches of the Yarra Trams rules, specifically Cardinal Rule 2 – Handheld Mobile Devices.

Your breach is considered serious misconduct. Your final pay will include pay to the end of today, 5 weeks’ pay in lieu of notice and accrued leave entitlements.

You are required to return all Yarra Trams property, please contact your team manager to arrange to do this and collect your personal belongings.

As explained in the meeting, you may appeal this decision by making a request in writing to the Chief Executive Officer within 48 hours.” 2

[7] The appeal process referred to in that letter is one established under the Yarra Trams Enterprise Agreement 2015 – Operations 3(the appeal process term), which provides as follows:

“An employee who has been dismissed from the service of Yarra Trams or reduced in grade shall be entitled to an appeal to an Independent Chair of the decision if within 48 hours of such dismissal or reduction, he/she so requests in writing to the Chief Executive Officer.

Appeals must be dealt with by way of an oral hearing ('appeal hearing') before an Independent…

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: [2018] FWC 2437
Decision Date: 4 MAY 2018

CaseChat Overview and Summary

The case of Keith Long against Keolis Downer T/A Yarra Trams involved an application for an unfair dismissal remedy, with an additional request for an extension of time. The applicant, Mr Long, sought to challenge his dismissal from employment, arguing that it was unjust. The respondent, Keolis Downer T/A Yarra Trams, was the employer against whom the unfair dismissal claim was brought. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The central legal issues in the case revolved around whether Mr Long's dismissal was indeed unfair and whether the application for an extension of time to lodge the claim was justifiable under the relevant legislation. The primary focus was on whether Mr Long could establish that his dismissal was harsh, unjust, or unreasonable, as per the Fair Work Act 2009. Additionally, the court had to consider whether there were exceptional circumstances that warranted extending the statutory time limit for lodging the unfair dismissal application.

The Fair Work Commission considered the evidence and submissions from both parties. It was determined that the dismissal did not meet the criteria for unfairness as outlined in the Act. The Commission found that the employer had acted reasonably in dismissing Mr Long. Regarding the application for an extension of time, the Commission found that there were no exceptional circumstances that would justify granting the extension. Consequently, the application for an unfair dismissal remedy was dismissed, and the request for an extension of time was denied.

No further orders were made by the Commission. The decision effectively upheld the employer's right to dismiss Mr Long and confirmed the strict adherence to the statutory timelines for filing unfair dismissal claims.

Orders