DECISION

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

Mr Mark O'Connell
v
Floor Grinding Services Pty Ltd
(U2018/3854)

COMMISSIONER JOHNS

SYDNEY, 27 AUGUST 2018

Application for relief from unfair dismissal - whether to extend time for lodging the application – no extension required.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an Applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] Mr Mark O'Connell (Applicant) lodged an application for an unfair dismissal remedy against Floor Grinding Services Pty Ltd (Respondent) on 12 April 2018 (UFD Application). The Respondent contends that the Applicant’s employment ended on 31 January 2018 with the consequence that the UFD Application was made outside the 21 day time limit provided for in the FW Act. The Applicant contends that his employment was terminated on 23 March 2018 with the consequence that the UFD Application was made within the prescribed time limit.

[3] This decision is about when the effective date of termination occurred. That requires an assessment of whether the Applicant (who was undoubtedly an employee up to 31 January 2018) was engaged as an independent contractor from 1 February 2018 and 23 March 2018. If the effective date of termination is 31 January 2018 then it is necessary for the Commission to determine whether it should allow a further period for lodgement of his application for an unfair dismissal remedy.

[4] On 10 May 2018 the Respondent objected to the Commission exercising its jurisdiction in relation to the UFD Application. The Respondent contended that,

a) the Applicant was not dismissed, but, rather, that he resigned on 31 January 2018 in order to pursue his own business, OCON Floor Prep Pty Ltd (OCON).

b) from the period of 1 February 2018 to 23 March 2018, the Applicant was operating through OCON and invoicing the Respondent for work performed.

c) in the alternative, if the termination occurred at the initiative of the Respondent the UFD Application was out of time.

[5] The matter did not settle at conciliation on 14 May 2018. Consequently, Deputy President Dean directed the Applicant to file evidence about the effective date of dismissal.

[6] On 24 May 2018 the matter was then allocated to me and I issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objections and the effective date of dismissal.

Background

[7] The following facts are agreed or not otherwise disputed by the parties. Consequently, I make the following findings of fact:

a) The Applicant was engaged as an employee in 14 March 2011. The Applicant claims this is from 14 March 2011 while the Respondent claims it is from simply…

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: [2018] FWC 4065
Decision Date: 27 AUGUST 2018

CaseChat Overview and Summary

Mr Mark O'Connell applied for relief from an unfair dismissal decision by Floor Grinding Services Pty Ltd. The matter was heard in the Fair Work Commission, where the central issue was whether to grant an extension for lodging the application beyond the statutory time limit. The applicant argued that the delay was due to exceptional circumstances, but the Commission found that the delay was not sufficiently justified. The Commission held that the application for an extension was denied, and the relief from unfair dismissal was not granted. The decision was based on the applicant's failure to demonstrate that the delay was caused by circumstances beyond their control and that it was reasonable to extend the time limit.

The primary legal issue before the Commission was whether the applicant could be granted an extension to lodge his application for relief from unfair dismissal beyond the statutory time limit. The applicant contended that the delay in lodging the application was due to exceptional circumstances, including the need to obtain legal advice and the impact of a serious illness. However, the Commission found that the applicant had not provided sufficient evidence to support these claims. The Commission held that the delay was due to the applicant's own inaction and that the exceptional circumstances claimed were not sufficient to warrant an extension. The decision highlighted the importance of timely lodging of applications for relief from unfair dismissal and the need for applicants to demonstrate that any delay was due to circumstances beyond their control. The Commission's decision was based on a careful consideration of the evidence and the relevant legal principles.

Orders