DECISION

Fair Work Act 2009
Section 773 - Application to deal with an unlawful termination dispute

Mr Ryan Dempster
v
Interflow T/A Interflow Pty Ltd
(C2018/3725)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 24 AUGUST 2018

Unlawful termination application – whether application statute-barred – whether eligible to make general protections claim – whether application out of time – abandonment of employment – whether dismissal – constitutional corporation – application statute-barred – application dismissed

[1] Mr Ryan Dempster has applied to the Fair Work Commission (the Commission) under section 773 of the Fair Work Act 2009 (the FW Act) to deal with a dispute in which it is alleged that his former employer Interflow Pty Ltd dismissed him for an unlawful reason in contravention of section 772 of the FW Act. His application was lodged on 6 July 2018.

[2] Interflow Pty Ltd oppose the application and raises two jurisdictional issues: firstly, a contention that the application is statute-barred by section 723 of the FW Act on the ground that Mr Dempster was a person entitled to make a general protections court application in relation to his alleged dismissal; and secondly, that Mr Dempster lodged his application out of time (by three days) and should not be granted an extension of time. In making this submission the respondent also asserts that Mr Dempster abandoned his employment and was not terminated by his former employer.

[3] The respondent also submits that Mr Dempster was employed by Interflow Resources Pty Ltd, not Interflow Pty Ltd. On the evidence before me I am satisfied that Mr Dempster was employed by Interflow Resources Pty Ltd. I hereinafter refer to that company as ‘Interflow’ or ‘the employer’. Should it be necessary, I would be minded to grant leave for Mr Dempster to amend his application by substituting the name Interflow Resources Pty Ltd as the respondent to his application.

[4] On 19 July 2018 I directed that the jurisdictional issues be dealt with at a telephone hearing scheduled for 21 August 2018. I directed Mr Dempster and Interflow to file materials on the jurisdictional issues. I have received those materials.

[5] In his written submission Mr Dempster disputes that his application is statute-barred. He says that he received advice from the Legal Services Commission (Legal Aid) that an unlawful termination application was appropriate. He also says that he does not require an extension of time because the employer terminated his employment on 22 June 2018 and, as such, it was filed within 21 days.

[6] Interflow asserts that Mr Dempster was advised on 22 June 2018 that it considered that he had abandoned his employment on 12 June 2018. It asserts that his employment ceased on 12 June 2018.

[7] I heard the jurisdictional matters by telephone on 21 August 2018. Mr Dempster was self-represented, assisted by his father Mr Leake. Interflow was represented by its Human Resources Manager Mr Gover. I heard evidence from both Mr Dempster and from Mr Gove. I…

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 Ryan Dempster v Interflow T/A Interflow Pty Ltd

Details

AGLC: Mr Ryan Dempster v Interflow T/A Interflow Pty Ltd [2018] FWC 4962
Case: [2018] FWC 4962
Decision Date: 24 AUGUST 2018

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Mr Ryan Dempster, lodged an application against his employer, Interflow T/A Interflow Pty Ltd, alleging that his termination was unlawful. The applicant sought to make a general protections claim under the Fair Work Act 2009, and argued that his termination was unfair and that he had not abandoned his employment. The employer contended that the application was statute-barred, out of time, and that the applicant had abandoned his employment. The dispute was about whether the applicant was eligible to make a general protections claim, whether the application was statute-barred or out of time, and whether the applicant had abandoned his employment. The Commission had to decide whether the applicant's termination was a dismissal, whether the employer was a constitutional corporation, and whether the applicant's application was statute-barred or out of time.

The Commission found that the applicant's termination was not a dismissal, and that the employer was a constitutional corporation. The Commission held that the applicant had abandoned his employment, and that his application was statute-barred and out of time. The Commission dismissed the application, finding that the applicant was not eligible to make a general protections claim. The Commission noted that the applicant had not taken steps to return to work, despite being given an opportunity to do so, and that the employer had not taken any action that would have required the applicant to return to work. The Commission also found that the applicant's application was statute-barred because it was not lodged within the required time period, and that the application was out of time because it was not lodged within a reasonable time after the applicant became aware of the grounds for the application.

The Fair Work Commission dismissed the applicant's application, finding that it was statute-barred and out of time. The Commission held that the applicant had abandoned his employment, and that he was not eligible to make a general protections claim. The Commission found that the applicant had not taken steps to return to work, despite being given an opportunity to do so, and that the employer had not taken any action that would have required the applicant to return to work. The Commission also found that the applicant's application was statute-barred because it was not lodged within the required time period, and that the application was out of time because it was not lodged within a reasonable time after the applicant became aware of the grounds for the application. The final orders of the Commission were that the application be dismissed, with no orders as to costs.

Orders