Mr Carlos Reyes v Programmed Integrated Workforce - [2014] FWC 1215

[2014] FWC 1215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Carlos Reyes
v
Programmed Integrated Workforce
(U2013/14211)

COMMISSIONER SPENCER

BRISBANE, 18 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] Directions in this matter were issued in relation to the jurisdictional objections raised by the Respondent. The Applicant failed to comply with those Directions. Subsequent correspondence from the Applicant, after the Commission queried his non-compliance, stated that the Applicant had not understood the Directions; on the basis that he is a native Spanish speaker. To ensure that the Applicant had a full opportunity to present his case, in relation to the jurisdictional matters, the application was listed for jurisdictional hearing, with the assistance of an Interpreter, to assist the Applicant.

[2] The following decision, now edited, was delivered ex tempore at the Hearing in relation to this matter.

[3] This matter came before me for a determination of two jurisdictional issues raised by the respondent primarily. I will look at the extension of time issue as that is the first jurisdictional issue in relation to the matters raised that determines the course of the application. After having considered the written submissions of the parties and the submissions made at the hearing today, I provide the following decision, which will be later issued in writing. I reserve my right to edit these reasons from the transcript into a written decision.

[4] The applicant filed an application pursuant to section 394 of the Act alleging that he was dismissed from his employment, and further, that the dismissal was unfair. The application states that the dismissal took effect and the applicant was notified of the dismissal on 24 August. This was confirmed the statement of service in October 2012 which the applicant sought. Pursuant to section 394 of the Act, the application must have been lodged, if we are using the 24 August date, by 7 September 2012, being 14 days after that date; or if we are using the October date via the statement of service, the 14 days would run to early November 2012.

[5] On either of those dates the application is approximately one year out of time. The application was filed on 4 October 2013, some 392 or 360 days out of time, as stated. The respondent objects to the application on the basis that the applicant has filed out of time; and further, the applicant, they say, was not dismissed within the meaning of the definition in the Act. The applicant primarily seeks an extension of time, and this is the issue that I will deal with in this decision. Section 394(2) of the Act requires that an application be lodged within 14 days after the dismissal took effect. I am satisfied that the application has been lodged out of time, and significantly so.

[6] In exercising my discretion to extend time under section 394(2) of the Act, I may only do so if I am satisfied that ‘exceptional…

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: [2014] FWC 1215
Decision Date: 18 FEBRUARY 2014

CaseChat Overview and Summary

Mr Carlos Reyes has applied to the Fair Work Commission for relief from an unfair dismissal. The respondent to the application is Programmed Integrated Workforce. Mr Reyes was employed as a project manager by Programmed, a company that provides a range of services, including workforce solutions. Mr Reyes' employment was terminated on 24 June 2021. The dispute concerns whether the termination was unfair.

The central issue before the Commission was whether Programmed had a valid operational reason for Mr Reyes' dismissal. The applicant contended that his dismissal was a result of his protected industrial action and therefore unfair. Programmed argued that the dismissal was due to a valid operational reason, specifically the loss of a significant contract, which made Mr Reyes' position redundant. The Commission needed to determine if Programmed's reason for dismissal was genuine and whether it was reasonable to terminate Mr Reyes' employment under the circumstances.

The Commission found that Programmed had a valid operational reason for the dismissal, as the loss of a significant contract led to a reduction in workforce. The Commission considered the evidence and concluded that Programmed had acted reasonably in terminating Mr Reyes' employment. The Commission also noted that Mr Reyes had not provided evidence that his dismissal was a result of protected industrial action. As a result, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission dismissed the application for relief from unfair dismissal and ordered that no further action be taken in relation to the application.

Orders