DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Bruns
v
Goodmans Groundforce Pty Ltd
(U2019/536)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 12 APRIL 2019

Application for relief from unfair dismissal – whether application filed out of time – when dismissal took place.

Introduction

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

[2] This decision concerns whether Mr Bruns filed his unfair dismissal application within 21 days after his dismissal from Goodmans Groundforce Pty Ltd (Goodmans) took effect. Mr Bruns filed his unfair dismissal application on 17 January 2019. He contends that he was dismissed on 2 January 2019. If Mr Bruns is correct, his unfair dismissal application was filed within time. Goodmans contends that it dismissed Mr Bruns on 21 December 2018, with the result that Mr Bruns filed his unfair dismissal application out of time.

[3] On 11 April 2019, a hearing was conducted, by telephone, in relation to the question of when Mr Bruns’s dismissal took effect. Mr Bruns gave evidence, as did Mr Goodman for Goodmans.

Applicable legal principles

“Dismissed” is defined in s 386(1) of the Act as follows:

“A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[4] A dismissal takes effect when the employment relationship has ended. 3 The termination of the employment relationship is a different concept from the termination of an employment contract.4

[5] Whether an employment relationship continues to exist is a question of fact. 5 The range of facts or factors which may need to be examined to answer the question of whether an employment relationship continues to exist will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,6 and the terms of the employment contract.

[6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 7

Relevant Facts

[7] Mr Bruns was employed by Goodmans from about 10 March 2010 until late 2018 or early 2019 as a casual garden labourer. He worked, on average, about 30 to 38 hours per week in the summer and fewer hours in the winter. Mr Bruns was informed on the day…

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: [2019] FWC 2555
Decision Date: 12 APRIL 2019

CaseChat Overview and Summary

Neil Bruns brought an application for relief from unfair dismissal against Goodmans Groundforce Pty Ltd in the Fair Work Commission. Bruns alleged that his dismissal was unjust and sought relief under the Fair Work Act 2009. Goodmans Groundforce Pty Ltd argued that Bruns' application was filed outside the statutory time limit, and thus should be dismissed. The central issue before the court was whether Bruns' application was filed beyond the permissible timeframe, which could nullify his claim for relief.

The court examined the date of Bruns' dismissal and the statutory time limit for filing an unfair dismissal application. The Fair Work Act stipulates that such applications must be lodged within 21 days from the date of termination. Bruns' application was filed beyond this period, and Goodmans Groundforce contended that this delay was fatal to his claim. The court had to determine if any exceptional circumstances could justify the late filing, such as whether Bruns had been misled, or if any procedural errors occurred that warranted an extension of time.

In its reasoning, the court held that Bruns had not demonstrated any exceptional circumstances or procedural errors that would permit an extension of the time limit. The court found that Bruns' application was indeed filed outside the statutory timeframe, and no compelling reasons were presented to excuse this delay. Consequently, the court dismissed Bruns' application for relief from unfair dismissal on the grounds that it was not lodged within the required 21-day period.

The court's decision was final, and no appeal was possible. Goodmans Groundforce Pty Ltd's defence of the out-of-time application was upheld, and Bruns' claim for relief from unfair dismissal was dismissed.

Orders