[2014] FWC 7893 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2014/7659) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 20 March 2015 [[2015] FWCFB 1877] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Gregory Stedman
v
Transdev NSW Pty Ltd T/A Transdev Buses
(U2014/1950)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 7 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Stedman and the respondent ceased on 9 May 2014. Mr Stedman lodged his application before the Fair Work Commission (Commission) on 2 September 2014. His application was lodged 9 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Stedman. In that application he set out the matters he considered the Commission should take into account when deciding whether or not to accept his application out of time. This is set out below:

“21 calendar days ended 30 may 2014. Today is 02 June 2014.
I was discouraged by my former employer to lodge and application for unfair dismissal, and was not aware, nor advised I had only 21 calendar days to lodge.
I lodged an appeal to my former employer by lengthy letter dated 13 may 2014.
I was telephoned by Mr Len Kidd, general Manager, Friday 23 May 2014 and informed they (Transdev) would not reverse their decision to summarily dismiss me on 09 May 2014.”

[4] The respondent lodged an Employer Response which contained its objections to the extension of time. They are set out below.

“1. The Company refutes the allegation made by the Applicant that he was discouraged from making an application for unfair dismissal.

2. The Applicant was informed by the Deputy MD/GM Service Delivery Manager on 23 May 2014 the Company would not be reversing its decision to terminate his employment. At the conclusion of the call the Applicant indicated he would be pursuing the matter further.

3. After this meeting the Applicant had seven (7) days before the 21 day period lapsed to submit his application.

4. It is not the responsibility of the Company to advise the Applicant of the 21 day time limit for lodging an unfair dismissal application.”

[5] On 4 August 2014 Mr Stedman made the following submission:

“I sent an Email to the Respondent seeking dialogue in order that the FWA resources may be spared in settling my grievance. However, Transdev have informed me by return Email that they prefer to utilise the FWA framework to deal with this matter.

I verily believe, as do all Applicants I suppose, that my claim…

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 7893
Decision Date: 7 NOVEMBER 2014

CaseChat Overview and Summary

Mr Gregory Stedman, an employee, sought relief from unfair dismissal against Transdev NSW Pty Ltd, his employer. The application was heard in the Fair Work Commission. Stedman claimed that his dismissal was unfair, and he sought reinstatement or compensation. The employer argued that the dismissal was justified due to Stedman's conduct, which they claimed amounted to serious misconduct.

The legal issues before the Commission were whether Stedman's dismissal was procedurally fair, and if the employer had just cause to dismiss him. The central dispute was whether Stedman's actions constituted serious misconduct warranting termination, and if the employer followed the correct procedures in dismissing him. The Commission needed to consider the evidence and arguments presented by both parties to determine if the dismissal was fair and justified.

The Fair Work Commission found that the employer did not follow proper procedures in dismissing Stedman, as they failed to provide adequate notice and opportunity for Stedman to respond to the allegations against him. Additionally, the Commission determined that Stedman's actions did not amount to serious misconduct that would justify immediate dismissal. Consequently, the Commission ruled that the dismissal was unfair and ordered the employer to reinstate Stedman to his previous position or pay him compensation in lieu of reinstatement.

Orders