DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Johnston
v
East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance
(U2019/3969)

COMMISSIONER YILMAZ

MELBOURNE, 9 AUGUST 2019

Application for an unfair dismissal remedy – application lodged out of time – exceptional circumstances- agent filed Notice of Discontinuance of claim lodged on time – application granted.

Introduction and background

[1] This decision concerns a jurisdictional objection raised by East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance (Respondent) to an application by Mr Paul Johnston (Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The Applicant was employed by the Respondent as a Sales Consultant on 1 October 2013 until his dismissal on 23 January 2019. He claims that his dismissal was unfair, and the reason given of redundancy was not genuine. Further, the Applicant argues that there was not a valid reason for dismissal.

[3] In early February 2019, the Applicant engaged Unfair Dismissals Australia as his representative and on 13 February 2019, Unfair Dismissals Australia lodged an unfair dismissal claim on the Applicant’s behalf (first application), which was on time. On 29 March 2019, Unfair Dismissals Australia filed a Form F50 - Notice of Discontinuance (Form F50) in relation to the first application. The Applicant alleges that Unfair Dismissals Australia filed the Form F50 without his express instructions or knowledge.

[4] On 3 April 2019, the Applicant instructed McDonald Murholme Solicitors (McDonald Murholme) to file a F53 – Notice of Representative Commencing to Act (Form F53) and a further unfair dismissal application was subsequently lodged on 8 April 2019 (second application). The Applicant is seeking an extension of time for the lodgement of his second application.

[5] The Respondent raises two jurisdictional points: that the application is lodged more than 21 days after the dismissal took effect and that the termination is a genuine redundancy.

The Applicant’s submissions

[6] The Applicant was dismissed on 23 January 2019, and on 24 January 2019, the Applicant received an email confirming the termination. The letter attached to the email stated that the reason for the termination was redundancy. 1 The Applicant, however, contends that the reason was not a genuine redundancy and “it was the first time the redundancy of the Applicant’s position had been mentioned to him”2.

[7] The first application was filed on 13 February 2019 by Unfair Dismissals Australia on behalf of the Applicant, and the parties attended a conciliation conference on 26 March 2019. The matter was not resolved at conference.

[8] It is submitted by the Applicant that following the unsuccessful resolution of the matter at the conciliation conference, Ms Beth of Unfair Dismissals Australia requested that the Applicant inform her if he intended to accept the Respondent’s offer to settle by Friday 29 March 2019. 3

[9] The Applicant submits he was dissatisfied by the representation of Unfair Dismissals Australia and on 28 March 2019, he approached…

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

AGLC: Paul Johnston v East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance [2019] FWC 5483
Case: [2019] FWC 5483
Decision Date: 9 AUGUST 2019

CaseChat Overview and Summary

Paul Johnston commenced proceedings against East Gippsland Real Estate Pty Ltd T/A LJ Hooker Lakes Entrance in the Fair Work Commission seeking remedy for an unfair dismissal. The dispute arose from Johnston's employment with the real estate agency, which he claimed was terminated without just cause or reason. The Fair Work Commission was the forum for this dispute, with the Commission having jurisdiction under the Fair Work Act 2009 (Cth).

The central legal issue before the Commission was whether to grant an extension of time for Johnston to lodge his application for an unfair dismissal remedy, as the application was filed beyond the statutory time limit. The Commission had to determine whether there were exceptional circumstances that justified the delay, considering the agent's timely filing of a Notice of Discontinuance of the claim. The Commission had to balance the statutory requirements for timely applications with the equitable principles that may allow for extensions in certain circumstances.

The Commission found that although the application for the unfair dismissal remedy was indeed lodged out of time, the agent had filed a Notice of Discontinuance of the claim within the statutory period. This action demonstrated that Johnston had not abandoned his rights but had merely mismanaged the procedural aspect of the application. The Commission acknowledged that the delay was not due to any fault of Johnston and found that exceptional circumstances existed, warranting an extension of time. Consequently, the Commission granted the application, allowing Johnston to pursue his unfair dismissal remedy despite the procedural lapse.

The Fair Work Commission ordered that the application for an unfair dismissal remedy be deemed to have been lodged within the prescribed time limit, and directed that the proceedings continue to be heard on their merits.

Orders