DECISION

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

Mr David Seale
v
SHT (Aus) Pty Ltd; Mr Adam Maley; Trucking Services Pty Ltd; Mr Matthew Barsley
(C2019/6913)

DEPUTY PRESIDENT LAKE

BRISBANE, 10 FEBRUARY 2020

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – extension of time – extension of time not granted – application dismissed.

[1] This decision concerns an application by Mr David Seale (the Applicant) under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute in relation to his dismissal by SHT (Aus) Pty Ltd (the First Respondent). The Application also named as Respondents Mr Adam Maley (Second Respondent), Trucking Services Pty Ltd (the Third Respondent), and Mr Matthew Barsley (the Fourth Respondent).

[2] There is some dispute as to who the Applicant’s employer was at the time of his employment and, more specifically, whether the Applicant was employed by the First and Second Respondents. The Applicant’s submission is that his employment commenced with the Respondent on 20 November 2018. The Form F8 lodged by the Applicant indicates at Question 1.2 that he was notified of his dismissal on or around 27 January 2019 and that his dismissal took effect on or around 27 January 2019. The Applicant filed his general protections application at 3:49 pm on 12 November 2019.

[3] By virtue of s. 366(1) of the Act, an application under s. 365 of the Act must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s. 366(2) of the Act. The period of 21 days ended at midnight on 17 February 2019. As the 17 February 2019 was a Sunday, and where the final day of the 21 day period falls on a weekend or on a national public holiday (when the Commission is closed) the timeframe is extended until the next business day. the Applicant could have lodged his application on Monday 18 February 2019 and still been in time. 1 Given the application was lodged some 268 days after 17 February 2019, this is not a relevant factor.

[4] The Applicant asks the Commission to allow a further period for the application to be made. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

CONSIDERATION OF WHETHER A FURTHER PERIOD SHOULD BE GRANTED

The approach to deciding whether a further period should be granted

[5] As previously noted, s. 366(1) of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 366(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which 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: [2020] FWC 587
Decision Date: 10 FEBRUARY 2020

CaseChat Overview and Summary

In the Fair Work Commission, Mr David Seale filed an application against SHT (Aus) Pty Ltd for contraventions involving his dismissal. The matter was brought before the Commission to address issues related to the procedural and substantive fairness of Mr Seale's termination. The core dispute centred on whether the dismissal was justified and if the proper procedural steps were followed. Mr Seale argued that he was dismissed without cause and that the process leading to his termination was unfair. SHT (Aus) Pty Ltd contended that Mr Seale was dismissed for valid reasons and that all procedural requirements were met.

The central legal issues before the Commission were whether the application was made within the statutory timeframe and, if not, whether an extension of time should be granted. Additionally, the Commission needed to determine whether the dismissal was substantively and procedurally fair. The Commission considered the timeliness of Mr Seale's application and the merits of granting an extension of time under the relevant statutory provisions. It also examined the evidence and arguments presented by both parties regarding the fairness of the dismissal.

The Commission found that Mr Seale's application was filed outside the statutory timeframe for seeking relief. Despite arguments presented by Mr Seale for an extension of time, the Commission held that an extension was not warranted under the circumstances. Consequently, the application was dismissed as it was not filed within the requisite period. The Commission did not proceed to consider the merits of the substantive and procedural fairness of the dismissal due to the timeliness issue.

Orders