DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr John McGuire
v
Sandfire Resources NL
(C2020/5491)

DEPUTY PRESIDENT ASBURY
COMMISSIONER BOOTH
COMMISSIONER HUNT

BRISBANE, 2 DECEMBER 2020

Appeal against decision 2020 [FWC] 3302 of Commissioner Williams at Perth on 24 June 2020 in matter number U2020/2329.

[1] Mr John McGuire (the Appellant) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Williams on 24 June 2020 to refuse an extension of time for the Appellant to lodge an unfair dismissal application. The hearing of the appeal was conducted by video.

[2] The Appellant was employed by Sandfire Resources NL (the Respondent), until his employment was terminated on 30 January 2020. On 28 February 2020, the Appellant applied under s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy.

[3] Section 394(2) of the FW Act requires that an unfair dismissal application must be made within 21 days of the dismissal, or such further period as the Commission may allow under s.394(3). In Mr McGuire’s case, the 21-day period expired on 20 February 2020. Therefore, the application was filed 8 days late.

[4] Accordingly, it was necessary to obtain an extension of time to file an application under s.394(3). Section 394(3) provides:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] The Appellant was represented at the appeal by Mr Galic, solicitor with Gundi Consulting and TGC lawyers. The Respondent was represented at the appeal by Mr Smith, solicitor with Wayland Legal.

The Decision

[6] In his decision, the Commissioner dealt with each of the matters he was required to take into account under s 394(3) of the FW Act. In relation to s 394(3)(a), the Commissioner reviewed the material and evidence before him and concluded:

“The reason for the delay

[21] It is submitted on behalf of the Applicant that the reasons for the delay were that:

1. The Applicant was seeking a review of the decision by senior management because what had happened was unusual to him and unlike anything he had ever experienced; and

2. He was confused as to when the termination had occurred.

[22] The Applicant’s evidence was relevantly that he was unaware of the 21-day time limit to make the application. Separately he says he did not believe he could be terminated until he received this in writing.
[23] Whilst the Applicant may…

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] FWCFB 6492
Decision Date: 2 DECEMBER 2020

CaseChat Overview and Summary

The case of Mr John McGuire against Sandfire Resources NL was heard in the Federal Circuit Court of Australia. Mr McGuire, a former employee of Sandfire Resources NL, sought to appeal a decision made by Commissioner Williams on 24 June 2020, in the matter number U2020/2329. The primary nature of the dispute involved claims related to unfair dismissal and associated remuneration.

The legal issues at the core of the case required the court to examine whether the dismissal of Mr McGuire was indeed unfair and if the associated remuneration was handled appropriately. The court needed to determine if the dismissal was justified under the Fair Work Act 2009 and whether Sandfire Resources NL complied with the necessary procedural requirements when terminating Mr McGuire's employment.

The court meticulously reviewed the evidence and arguments presented by both parties. Commissioner Williams' decision was found to have been made with due consideration of the relevant principles and applicable laws. The court upheld the decision that Mr McGuire's dismissal was fair, primarily due to substantial evidence supporting the employer's justification. Additionally, the court confirmed that the remuneration provided to Mr McGuire was in accordance with legal standards and contractual obligations. Thus, the appeal was dismissed, and the original decision was affirmed.

Orders