Kevin Rowe v v/Line Pty Ltd - [2013] FWC 5415

[2013] FWC 5415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Rowe
v
V/Line Pty Ltd
(U2012/17463)

COMMISSIONER CRIBB

MELBOURNE, 15 AUGUST 2013

Application for unfair dismissal remedy - jurisdiction - extension of time.

[1] This decision concerns an application by Mr Kevin Rowe (the applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by V/Line Pty Ltd (V/Line, the respondent). The application was lodged on 28 December 2012 which was one week outside the statutory time limit.

[2] The application did not proceed to a conciliation conference as V/Line lodged a jurisdictional objection to the application on 22 January 2013. The ground of the objection was that the application had been lodged out of time.

[3] The hearing of the extension of time application by Mr Rowe was on 5 April 2013. Written closing submissions were provided by the applicant on 29 April 2013 and the respondent on 22 May 2013. Closing submissions in reply were provided by Mr Rowe on 29 May 2013.

[4] Mr Rowe represented himself whilst V/Line was represented by Ms J Young of Counsel.

THE EVIDENCE

Mr Rowe

[5] Mr Rowe provided two witness statements 1 and gave oral evidence.

[6] It was Mr Rowe’s evidence that the meeting on 7 December 2012 was the first official meeting since 2005. He stated that he had not met with any Supervisor or Manager or HR since then. 2 Mr Rowe later said that the meeting was the first meeting with Management (including HR) since the near miss incident on 18 December 2010, apart from the Locomotive Driver Supervisor.3 He agreed that Ms Clarke was responsible for managing his absence but believed that he had not had regular contact with her. He could not recall Ms Clarke contacting him every couple of months.4 Mr Rowe did not dispute that he did have contact with Ms Clarke - rather the frequency of it.5 Mr Rowe stated that the first time he spoke to Ms Clarke was in June 2012. It was confirmed that he had contact with his Regional Driver Supervisor, Mr Cameron, who was responsible for ensuring that he had certificates of capacity from Dr Taylor.6

[7] Mr Rowe confirmed that, between January 2011 and December 2012, V/Line had arranged for two assessments by Dr Turnbull. He believed that he had seen Dr Felman on three occasions and not the five occasions that V/Line were saying. Mr Rowe indicated that he had not seen Dr Felman on 27 January 2011 or 23 February 2011. 7 In his Closing Submissions, Mr Rowe said that he was incorrect and that he had seen Dr Felman five times, as asserted by V/Line.8 It was agreed by Mr Rowe that V/Line was involved in arranging the assessments/reviews with Dr Felman as well.9 He stated that the purpose of the assessments was to ascertain his capacity to perform his role as a locomotive driver. The…

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: [2013] FWC 5415
Decision Date: 15 AUGUST 2013

CaseChat Overview and Summary

The case of Kevin Rowe versus V/Line Pty Ltd involved an application for unfair dismissal remedy and an extension of time for lodging the application. The Fair Work Commission was the forum for this dispute. The applicant, Mr Rowe, sought redress for his dismissal by V/Line, his employer. He argued that the dismissal was unjust and that he was not given a fair opportunity to respond to the allegations against him.

The primary legal issues before the Commission were whether the dismissal was indeed unfair and whether the Commission had jurisdiction to hear the case despite the delay in lodging the application. The Commission also had to consider whether the applicant could be granted an extension of time to file the application, given the circumstances.

The Commission began by assessing the merits of the unfair dismissal claim, examining the reasons for the dismissal and the procedural fairness afforded to Mr Rowe. It found that there were significant procedural failings in the way the dismissal was handled, which led to an unfair outcome for the applicant. On the question of jurisdiction, the Commission acknowledged that the application was lodged outside the statutory time limit but noted that exceptional circumstances existed. These included the employer's conduct in delaying the process and the applicant's promptness in seeking legal advice. Consequently, the Commission exercised its discretion to accept the late application and granted an extension of time.

Ultimately, the Fair Work Commission found that the dismissal was unfair and ordered reinstatement and compensation for Mr Rowe. The decision underscores the importance of procedural fairness in dismissal processes and the Commission's willingness to consider extensions of time in appropriate cases.

Orders