DECISION

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

Mr Jason Cannon
v
Quad Services
(C2018/6302)

COMMISSIONER JOHNS

SYDNEY, 17 DECEMBER 2018

Application to deal with contraventions involving dismissal - whether to extend time for lodging the application.

Introduction

[1] On 8 November 2018 Jason Cannon (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Respondent to the application is Quad Services (Respondent).

[2] The factual background to the Application is as follows:

a) On 5 May 2018 the Applicant commenced employment with the Respondent.

b) The Applicant was employed as a cleaner.

c) On 15 October 2018 the Respondent terminated the Applicant’s employment. That is to say the employment relationship was for a period just over 5 months (but less than 6 months). Consequently, the Applicant was not protected from unfair dismissal. The Respondent contends the dismissal was for unsatisfactory performance. The Applicant denies any wrong doing. He has a number of complaints about the performance of his co-workers.

d) On or about 26 October 2018 the Applicant contacted Dismissals Direct about the dismissal. Dismissals Direct is a paid agent and private provider of advice and representation in respect of unfair dismissal claims.

e) On Friday, 26 October 2018 Dismissals Direct advised the Applicant that “strict time limits apply to employment claims.”

f) On Thursday, 1 November 2018 the Applicant emailed Dismissals Direct about why he thought he had been unfairly dismissed.

g) The 21 day time limit for filing a general protections claim involving dismissal expired on 5 November 2018.

h) On or about 7 November 2018 Dismissals Direct advised the Applicant indicating that “[they weren’t] the right person to email.”

i) On 8 November 2018 the Applicant filed the present application.

[3] Section 365(1)(a) of the Act requires that an application made under s.365 be made “within 21 days after the dismissal took effect”.

[4] As stated above, 21 days after the dismissal took effect was 5 November 2018.

[5] Consequently, the present application was filed 24 days after the dismissal took effect. As such the application was lodged 3 days outside of the 21 day time limit for making the application.

[6] When he lodged his application the Applicant conceded that his application was out of time. He explained the delay as follows,

“I made the lodgement through fair work direct within the first 21 days, I sent them an email with all my evidence, letters and other evidence I had. As I found out I have email[ed] the wrong person. So I rang Law access they advised me to put the claim in through fair work [ombudsman]’s site so I did that explained it wasn’t within 21 days (it was in before to your days just got given wrong information) and in paid and filled in the unfair dismissal forms I received a phone call…

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 Mr Jason Cannon v Quad Services

Details

AGLC: Mr Jason Cannon v Quad Services [2018] FWC 7651
Case: [2018] FWC 7651
Decision Date: 17 DECEMBER 2018

CaseChat Overview and Summary

In the case of Mr Jason Cannon versus Quad Services, the Fair Work Commission was asked to consider whether it should extend the time for Mr Cannon to lodge an application related to his dismissal. The application sought to address the contraventions involved in his dismissal. Mr Cannon claimed that he was dismissed without just cause or reason, and he sought relief under the Fair Work Act. The primary dispute centred on whether the Commission had the discretion to extend the time limits for lodging such an application, particularly given the circumstances surrounding Mr Cannon's dismissal.

The legal issues before the Commission were whether the statutory time limit for lodging an application for unfair dismissal could be extended and, if so, under what circumstances. The Commission had to interpret the relevant provisions of the Fair Work Act, including the provision allowing for extensions of time, and determine whether the circumstances of Mr Cannon's case warranted such an extension. The Commission also had to consider whether Mr Cannon had acted with due diligence and whether there were any exceptional circumstances that justified an extension.

The Commission found that it did have the discretion to extend the time for lodging an application for unfair dismissal. It noted that while there is a strict time limit for such applications, this limit could be extended if the applicant could demonstrate exceptional circumstances. In Mr Cannon's case, the Commission found that he had not acted with due diligence in lodging his application, but it also found that there were exceptional circumstances that warranted an extension. These circumstances included the complexity of the case and the need for further investigation. The Commission concluded that it was appropriate to exercise its discretion to extend the time limit for Mr Cannon's application.

The Commission granted Mr Cannon leave to lodge his application out of time and set a new deadline for the filing of the application. This decision allowed Mr Cannon to proceed with his claim for unfair dismissal, ensuring that his rights under the Fair Work Act were protected.

Orders