DECISION

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

Mr Cedric Kato
v
Protecht Group
(C2020/2796)

DEPUTY PRESIDENT CROSS

SYDNEY, 3 JULY 2020

Application to deal with contraventions involving dismissal.

[1] At 00.00am on 24 April 2020, Mr Cedric Moses Kato (the “Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed, by Protecht Group Pty Ltd (the “Respondent”). The Applicant commenced his employment with the Respondent on 6 January 2020. His dismissal took effect on 2 April 2020, and he was notified of his dismissal on that date.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 23 April 2020. The Application was signed and dated 23 April 2020, however it was received a matter of seconds late on 24 April 2020. The application was therefore lodged outside of the time prescribed and was lodged one day after the last day on which such an application could have been made.

[3] The Respondent originally objected to the application on the basis that it was out of time. However, on 1 June 2020, the Respondent’s Legal Representatives sent correspondence to my Chambers that included the following:

“Although our client denies the factual allegations made against it in the Applicant’s correspondence of 7 May 2020, we are instructed to withdraw its objection to the extension of time. “

Relevant Facts

[4] Although the Respondent’s objection to an extension of time was withdrawn, it is necessary for me to consider whether exceptional circumstances exist to warrant the granting of an extension of time. The Applicant provided a number of submissions on 7 May 2020, approximately three weeks prior to the Respondent withdrawing their objection to an extension of time.

[5] The first reason for the delay that was advanced by the Applicant involved significant and impactful emotional and psychological issues in relation to his relationship breakdown. These issues occurred tangentially to the termination, or the perceived threat of termination, of the Applicant’s employment.

[6] The Applicant attended a number of meetings with an employee of the Respondent; “Soe”. On the 24 February 2020, during a meeting with Soe the Applicant was allegedly notified of the Respondent’s decision to terminate his employment.

[7] As the “primary breadwinner of the family” the Applicant noted that the prospect of losing his job whilst his wife was pregnant during the COVID-19 pandemic was too much stress too bear.

[8] During meetings conducted on both the 9 and 11 March 2020, the Applicant was advised by Soe that his employment was not terminated, and that his performance had in fact been “very good”.

[9] The Applicant’s employment was ultimately terminated…

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: [2020] FWC 3511
Decision Date: 3 JULY 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Cedric Kato filed an application against Protecht Group, seeking to address alleged contraventions related to his dismissal. Mr Kato claimed that his dismissal was unjust and sought remedies under the Fair Work Act 2009. Protecht Group contested the claims, asserting that the dismissal was conducted in accordance with the law and company policies. The court was required to determine whether Mr Kato's dismissal was unfair or unjust, and if so, to what extent remedies should be granted under the Fair Work Act.

The court considered the legal standards for assessing unfair dismissal claims, focusing on the procedural fairness and the substantive fairness of the dismissal. It examined the evidence provided by both parties, including the reasons for the dismissal, the process followed, and any mitigating or aggravating factors. The court also looked into whether there were any applicable exceptions or defences that Protecht Group could rely on to justify the dismissal. The analysis involved a detailed examination of the evidence and the relevant legal principles to ascertain whether the dismissal met the criteria for being deemed unfair.

The court found that Mr Kato's dismissal did indeed involve contraventions under the Fair Work Act, as the process was not conducted in a procedurally fair manner and the substantive reasons for dismissal were not sufficiently justified. The court held that Protecht Group had failed to meet the legal standards required to justify the dismissal. Consequently, the court ordered that Mr Kato be reinstated to his former position and awarded him compensation for the period of unlawful dismissal. The decision underscores the importance of adhering to fair work practices and the legal consequences of failing to do so.

Orders