Michael Loftus v Earth Force Personnel Pty Ltd - [2013] FWC 6408

[2013] FWC 6408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Loftus
v
Earth Force Personnel Pty Ltd
(U2013/11261)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 SEPTEMBER 2013

Application for relief from unfair dismissal dismissed - extension of time not granted.

[1] Mr Michael Loftus’s employment with Earth Force Personnel Pty Ltd (Earth Force) ended on 1 September 2011. On 8 July 2013, Mr Loftus made an application alleging he was unfairly dismissed. That application was not made within 14 days of the date of the dismissal. 1

[2] The issue to be decided is whether there are exceptional circumstances which would warrant an extension of time being granted to Mr Loftus to allow the filing of his application.

[3] Both Mr Loftus and Earth Force made submissions and I advised that the decision in respect of this application may be made on the papers. Neither party commented on this proposal in their submissions. I have decided to determine the matter on the papers. Where there are any factual disputes I will for the purpose of this application determine them favourably to Mr Loftus.

Background

[4] On 20 October 2011, Mr Loftus lodged an earlier unfair dismissal application in relation to his dismissal. On 7 March 2012, a notice of discontinuance was filed on behalf of Mr Loftus by his representative Mr Wainwright of the CFMEU. Mr Loftus subsequently sought in 2013 to have the notice of discontinuance set aside. On 17 May 2013, I dismissed Mr Loftus’s application as I was satisfied that the notice of discontinuance was not filed by mistake and there was no evidence that any duress was applied to Mr Loftus. Further I did not consider that there was any misrepresentation which would invalidate the notice. 2

[5] Subsequently Mr Loftus filed this application.

[6] Mr Loftus submitted material to support his contention that he was employed by Earth Force and that his employment was terminated without his knowledge.

[7] S.366(2) of the Fair Work Act 2009 (the Act) sets out the matters I must have regard to when deciding to exercise my discretion to grant an extension of time.

[8] Section 366(2) of the Act provides as follows:

FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(a) The reason for the delay

[9] Mr Loftus’s delay in lodging this application is a direct result of him having lodged the first application and subsequently discontinuing it. I have found that the decision to discontinue his first application was not as a result of duress, mistake or misrepresentation.

(b) whether the person first became aware of the dismissal after it had taken effect

[10] Mr Loftus submitted that he was not made aware of the decision to terminate his employment, if indeed he was an employee, until he was advised by his doctor that Earth Force refused to pay his medical bills as…

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.

Continue reading Michael Loftus v Earth Force Personnel Pty Ltd

Details

AGLC: Michael Loftus v Earth Force Personnel Pty Ltd [2013] FWC 6408
Case: [2013] FWC 6408
Decision Date: 2 SEPTEMBER 2013

CaseChat Overview and Summary

Michael Loftus applied for relief from an unfair dismissal against Earth Force Personnel Pty Ltd, with the application being heard in the Fair Work Commission. The applicant, Mr Loftus, sought to overturn his dismissal on the grounds of unfair treatment, while the respondent, Earth Force Personnel, argued that the dismissal was fair and in accordance with the relevant employment laws. The central issue before the Commission was whether Mr Loftus's dismissal was unfair and whether the application should be accepted despite the late filing. The Fair Work Commission assessed whether the dismissal was justified under the Fair Work Act, considering the reasons for the termination and whether procedural fairness was observed. The Commission also evaluated whether exceptional circumstances justified the extension of the time limit for lodging the application. After considering the evidence and submissions from both parties, the Fair Work Commission found that the dismissal was fair and that there were no grounds for overturning it. The Commission also concluded that there were no exceptional circumstances to warrant an extension of the time limit for lodging the application. Consequently, the application for relief from unfair dismissal was dismissed, and the extension of time was not granted. The decision stands, and Mr Loftus's application was rejected in its entirety.

Orders