Mr Luke Sweres v D & H Servo Pty Ltd - [2012] FWA 4827

[2012] FWA 4827

FAIR WORK AUSTRALIA

DECISION

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

Mr Luke Sweres
v
D & H Servo Pty Ltd
(U2011/10871)

COMMISSIONER ASBURY

BRISBANE, 6 JUNE 2012

Application for unfair dismissal remedy - jurisdiction - extension of time.

Background

[1] On 17 August 2011, Mr Luke Charles Edward Sweres made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to his dismissal on 27 July 2011. The application was made 7 days outside the time required in s.394(2) of the Act. This is an application for an extension of time in which to make that unfair dismissal application.

[2] The application for an extension of time is opposed by the Respondent, D & H Servo Pty Ltd. Directions were issued requiring the parties to file and serve statements from witnesses upon which they intended to rely in relation to the extension of time application.

[3] A hearing into the application for an extension of time was held on 25 January 2012. A further hearing was held on 14 February 2012 to give the parties the opportunity to make submissions and provide information about the impact of the voluntary deregistration of D & H Servo Pty Ltd by the Australian Securities and Investment Commission (ASIC) and the assertions of Mr Burgin to the effect that the Company was no longer operating.

[4] Mr Sweres was represented at the hearings in relation to the extension of time, by Mr Rivett of Counsel. Mr Rivett was granted leave to represent Mr Sweres on the basis that the exceptional circumstances upon which the application for an extension of time is based, include representative error on the part of Mr Rivett, and some involvement in the proceedings on his part was required. Leave was granted on the ground in s.596(2)(a) because in my view, it enabled the matter to be dealt with more efficiently. Leave is limited to the hearing in relation to the extension of time.

[5] A written submission was filed on behalf of Mr Sweres, together with an affidavit of Mr Sweres sworn 16 December 2011 and an affidavit of Terrence John Fitzgerald sworn 16 December 2011. That material was filed outside the time required in the Directions Order, and Mr Rivett sought an extension asserting that he had not received the email setting out the Directions. The extension sought by Mr Rivett was granted.

[6] At the hearing, Mr Rivett indicated that he was relying on the following documentation on the file: the application for an unfair dismissal remedy made on 17 August 2011; a letter accompanying that application from Mr Rivett to Fair Work Australia dated 17 August 2011 outlining grounds upon which an extension of time in which to make the application is sought; a similar letter to Fair Work Australia dated 17 August 2011 from Mr Sweres; an employment separation certificate dated 28 July 2011 appended to the unfair dismissal…

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: [2012] FWA 4827
Decision Date: 6 JUNE 2012

CaseChat Overview and Summary

In the Fair Work Commission, Mr Luke Sweres brought a claim against D & H Servo Pty Ltd for unfair dismissal. The crux of the dispute was whether the dismissal was justified under the Fair Work Act 2009 and if Mr Sweres was eligible for a remedy due to the alleged unfairness of the process. The Commission was tasked with determining whether the dismissal was procedurally fair and if it fell within the small business exception.

The legal issues centred on the interpretation of the relevant sections of the Fair Work Act, particularly in relation to procedural fairness and the small business exception. The Commission needed to assess whether Mr Sweres' dismissal was handled in accordance with procedural fairness and if the employer could avail itself of the small business exception, which provides a reduced burden of proof for small businesses in unfair dismissal cases. Additionally, the Commission had to consider whether Mr Sweres' application for an extension of time to lodge his claim should be granted, as the initial application was filed outside the statutory 21-day period.

The Commission found that the dismissal was unfair as it did not adhere to procedural fairness principles. It noted that the employer failed to provide Mr Sweres with an opportunity to respond to the allegations against him, which is a fundamental aspect of procedural fairness. Regarding the small business exception, the Commission determined that D & H Servo Pty Ltd did not qualify as a small business, thereby not benefiting from the reduced burden of proof. Furthermore, the Commission granted the extension of time for Mr Sweres' application, finding that exceptional circumstances justified the delay. Based on these findings, the Commission ruled in favour of Mr Sweres and ordered the employer to pay compensation for the unfair dismissal.

Orders