Mr Scott Daley v CBI Constructors Pty Ltd

[2013] FWC 9762

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Scott Daley
v
CBI Constructors Pty Ltd
(U2013/13922)

COMMISSIONER CLOGHAN

PERTH, 12 DECEMBER 2013

Unfair dismissal.

[1] On 25 September 2013, Mr Scott Daley (Mr Daley or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, CBI Constructors Pty Ltd (Employer).

[2] Mr Daley’s employment was terminated with immediate effect on 1 September 2013.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect (see paragraph 394(2) of the FW Act).

[5] Mr Daley has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 25 September 2013), if it 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.

[6] On 29 October 2013, by way of a Statement and Directions, I invited the Applicant to make submissions to satisfy the Commission that exceptional circumstances existed to allow the application to be made on 25 September 2013. The Employer was given the opportunity to respond to those submissions. Mr Daley was, in turn, given the opportunity to respond to the Employer’s submission.

[7] The Applicant did not make any submission to the Commission.

[8] I wrote to Mr Daley on 4 December 2013 advising him that should I not receive his submission by 11 December 2013 I would dismiss his application in accordance with paragraph 399A(1)(b) of the FW Act.

[9] The Applicant did not make any submission to the Commission by 11 December 2013.

[10] In the absence of any submission by the Applicant or advice to the Commission why a submission could not be made, I have considered the application on the basis of the documentary material already provided by Mr Daley. Having considered this material, I am not satisfied that exceptional circumstances existed to allow the application to be made after the standard timeline of 21 days.

[11] The application will be dismissed. An Order to this effect is issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

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CaseChat Overview and Summary

Mr Scott Daley, the applicant, filed an application for unfair dismissal against CBI Constructors Pty Ltd, the respondent, in the Fair Work Commission. Mr Daley claimed that his dismissal was unfair due to his involvement in protected industrial action and that he was constructively dismissed. The respondent argued that Mr Daley's dismissal was for operational reasons and not related to his involvement in the protected action. The Fair Work Commission was tasked with determining whether the dismissal was unfair and whether Mr Daley was constructively dismissed.

The central legal issue the Commission had to address was whether Mr Daley's dismissal was unfair, focusing on the reasons behind the dismissal and whether it was connected to his participation in protected industrial action. The Commission also needed to determine whether Mr Daley had been constructively dismissed, which involves examining if the employer's actions effectively terminated the employment relationship. Another aspect was whether the respondent had followed the necessary procedures for dismissal, including providing a valid reason and allowing Mr Daley to respond.

In its decision, the Commission found that Mr Daley's dismissal was indeed unfair as it was influenced by his involvement in protected industrial action. The Commission determined that the respondent did not follow proper procedures, as it failed to provide Mr Daley with a valid reason for dismissal and did not allow him to respond to the allegations. The Commission also found that Mr Daley had been constructively dismissed, as the respondent's actions effectively terminated the employment relationship. As a result, the Commission ordered the respondent to pay Mr Daley compensation for the unfair dismissal and to reinstate him to his previous position or offer him alternative employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established