Mr Jed Capaldi v Daniel Terrence Gobbo - [2025] FWC 1588

[2025] FWC 1588

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Jed Capaldi
v

Daniel Terrence Gobbo

(C2025/1991)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 10 JUNE 2025

Application alleging contravention of general protections provisions – whether applicant dismissed or abandoned employment – date dismissal took effect - extension of time –whether exceptional circumstances exist - application dismissed.

Background

On 14 March 2025 the applicant in this matter Mr. Jed Capaldi (Applicant) filed an application under s.365 of the Act against his former employer, Daniel Gobbo (Respondent) alleging that his employment had been terminated by the Respondent in breach of the general protections provisions in Part 3-1 of the Act.

Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2).

In his application, the Applicant stated that he was unsure as to the date his dismissal took effect but that based on advice he had received, he understood that his dismissal took effect on or about 10 January 2025. In final submissions the Applicant said that his dismissal took effect on 10 January 2025. On that basis, the Applicant accepted that the application was made outside the 21-day time limit referred to in s.366.

The Respondent said in his F8A Response that the Applicant was not formally dismissed but rather had voluntarily ceased attending work in January 2025 at the end of a period of approved leave. The Respondent said that he had concluded that the Applicant had abandoned his employment because of a lack of communication from the Applicant and a failure to return to work. The Response said that the Respondent had not given formal termination notice or taken any other steps to formally end the Applicant’s employment.

Further, the Respondent also formally objected to the application on the basis that the application was not made within the 21-day time period. The Respondent maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time.

Date dismissal took effect

It is necessary in cases such as these to identify the date that any dismissal took effect because it is from that date that the 21-day time limitation period in s.366(1) begins to run.

The evidence as to the Applicant’s working arrangements and the circumstances in which his employment came to an end was as follows. The Applicant was engaged by the Respondent in or about August/September 2024 to perform delivery and sales work for the Respondent. The Applicant said his employment was on a part-time basis and that he was required to work 8 hours a day on Thursday and Friday of each week. The Respondent said that the Applicant was required to perform deliveries on an ‘ad hoc’ basis. A copy of a letter of engagement was in evidence and…

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 Jed Capaldi v Daniel Terrence Gobbo

Details

AGLC: Mr Jed Capaldi v Daniel Terrence Gobbo [2025] FWC 1588
Case: [2025] FWC 1588
Decision Date: 10 JUNE 2025

CaseChat Overview and Summary

The case of Mr Jed Capaldi v Daniel Terrence Gobbo [2025] FWC 1588, dealt with by Deputy President Roberts of the Fair Work Commission, involved an application by Mr Capaldi against his former employer, Mr Gobbo, alleging a breach of general protections provisions under the Fair Work Act 2009. Mr Capaldi claimed that his employment was terminated without cause and without proper notice, and that this dismissal contravened the Act. The application was filed beyond the statutory 21-day period, which Mr Capaldi attributed to uncertainty over the circumstances of his dismissal. Mr Gobbo, on the other hand, argued that Mr Capaldi had voluntarily abandoned his employment due to a lack of communication and failure to return to work after an approved leave period.

The legal issues before the Commission were whether Mr Capaldi was dismissed and, if so, the date on which the dismissal took effect. Additionally, the Commission needed to determine if exceptional circumstances existed to warrant an extension of the time limit for lodging the application. The Commission found that Mr Capaldi was indeed dismissed on 17 January 2025, based on the employer's actions in arranging for the collection of his work phone and failing to respond to his inquiry about resuming work. This conduct, in the absence of access to necessary work tools, effectively ended the employment relationship. However, the application was filed 35 days beyond the statutory time limit. The Commission also assessed the reasons for the delay, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness considerations, concluding that there were no exceptional circumstances justifying an extension of time. Consequently, the application was dismissed.

The Deputy President's decision hinged on the interpretation of the dismissal date and the absence of exceptional circumstances to extend the filing period. The Commission's assessment of the evidence and legal principles led to the conclusion that the application was out of time and did not meet the criteria for an extension under section 366(2) of the Act.

Orders