DECISION

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

Mr Khaled Odat
v
Rasier Pacific Pty Ltd
(U2021/4298)

COMMISSIONER RIORDAN

SYDNEY, 22 JULY 2021

Application for an unfair dismissal remedy.

[1] On 21 April 2021, Mr Kahled Odat’s (the Applicant) services were terminated by Rasier Pacific Pty Ltd (the Respondent).

[2] On 19 May 2021, the Applicant filed with the Fair Work Commission (the Commission) an application (the Application) for a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).

[3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further period as the Fair Work Commission allows.

[4] The 21-day statutory period in which the Applicant had to file an unfair dismissal application expired on 12 May 2021. The Application was filed 7 days outside of the statutory time frame. This decision addresses whether the Applicant should be granted a further period in which to lodge his Application.

[5] The matter was listed for Hearing by telephone on 30 June 2021. At the Hearing, the Applicant represented themself and the Respondent was represented by Mr Cameron Loughlin, the Respondent’s Legal Counsel.

Legislation

[6] The relevant section of the Act is section 394.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.

A Brief Summary of the Applicant’s Submissions and Evidence

[7] On 3 June 2021, the Commission wrote to the Applicant asking him to outline why he believed he had exceptional circumstances within the meaning of section 394(3) of the Act.

[8] On 8 June…

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: [2021] FWC 4389
Decision Date: 22 JULY 2021

CaseChat Overview and Summary

In the matter of Mr Khaled Odat versus Rasier Pacific Pty Ltd, the applicant, Mr Odat, sought an unfair dismissal remedy before the Fair Work Commission. The dispute arose from Mr Odat's employment termination by Rasier Pacific Pty Ltd, which he contended was unjust and without valid reason. The case was heard and determined by the Fair Work Commission, a tribunal with jurisdiction over employment disputes in Australia.

The primary legal issues before the Commission were whether Mr Odat's dismissal was procedurally fair and whether it was substantively fair. Procedural fairness involved assessing whether the employer provided adequate notice and an opportunity for the employee to respond to the allegations leading to dismissal. Substantive fairness required examining whether the dismissal was based on valid grounds, such as misconduct or capability, and if it was proportionate to the alleged offence.

The Commission found that while the employer provided a notice of termination, it failed to adequately inform Mr Odat of the reasons for the dismissal or offer him an opportunity to respond. The employer's decision to terminate was based on allegations of misconduct, but the Commission determined that these allegations were not substantiated and the dismissal was disproportionate. Given these findings, the Commission ruled that the dismissal was both procedurally and substantively unfair.

Consequently, the Fair Work Commission ordered that Mr Odat's dismissal be unfair and that he be reinstated to his position. Additionally, the employer was directed to pay Mr Odat compensation for the period of his wrongful termination.

Orders