DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Ricky Watson
v
Helping Hand Aged Care
(U2020/3)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 22 APRIL 2020

Application for an unfair dismissal remedy – utilities officer – casual employee – extension of time – failure to provide timely separation certificate - no exceptional circumstances for late lodgement – application dismissed

[1] On 1 January 2020 Ricky Watson (Mr Watson or the applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal by Helping Hand Aged Care (Helping Hand, the respondent or the employer).

[2] His application is opposed by Helping Hand, which raises three jurisdictional objections.

[3] There is a dispute as to whether Mr Watson was dismissed. Helping Hand claims that Mr Watson resigned on 9 December 2019. It also claims that Mr Watson, as a casual employee, was not dismissed. In response, Mr Watson claims that he resigned on 9 December 2019 but that it was a forced resignation and thereby a dismissal within the meaning of section 386(1)(b) of the FW Act. He says that as a casual employee he worked a regular and systematic roster entitling him to make the claim.

[4] There is no dispute that Mr Watson’s application is out of time. There is a dispute as to whether exceptional circumstances exist so as to warrant an extension of time. Mr Watson says that exceptional circumstances led to the delay.

[5] This decision only concerns Mr Watson’s application for an extension of time. The other two jurisdictional objections would be determined in separate proceedings if, but only if, the date for lodgement is extended.

[6] I heard the extension of time application by phone on 14 April 2020. Mr Watson appeared, at the appointed time. The employer did not appear as the relevant officer could not be located by its administrative staff. I determined in the interests of fairness to proceed with the hearing in the employer’s absence because:

• Notice of the hearing had been provided to both parties on 18 March 2020;

• The employer was aware of the application and had filed a response on 19 January 2020;

• After waiting fifteen minutes beyond the appointed hearing time, no adequate explanation had been given for the employer’s non-attendance;

• Mr Watson had filed materials as directed and attended the hearing as directed; and

• The employer had been given the opportunity, but was not compelled by my directions to attend the hearing and file materials.

[7] In order to provide a further measure of procedural fairness to the parties, at the conclusion of the hearing I directed that the audio transcript be provided to both parties (including the respondent) and invited either party, if they so wished, to make a further written submission within 48 hours.

[8] The employer subsequently apologised for not attending the hearing…

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: [2020] FWC 2056
Decision Date: 22 APRIL 2020

CaseChat Overview and Summary

The case of Ricky Watson versus Helping Hand Aged Care involved the applicant, a casual employee, who sought an unfair dismissal remedy. The applicant was employed as a utilities officer and claimed that his employment was terminated without just cause or reason. The respondent, Helping Hand Aged Care, argued that the dismissal was fair and reasonable. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue the court had to decide was whether the applicant's application for an unfair dismissal remedy should be dismissed due to his failure to provide a timely separation certificate. Additionally, the court considered whether there were exceptional circumstances that justified the late lodgement of the certificate. The respondent argued that the applicant had not provided a valid reason for the delay, and therefore, the application should be dismissed.

In its decision, the court found that the applicant had not provided a timely separation certificate, which is a mandatory requirement for such applications. The court held that the applicant's failure to provide the certificate within the specified timeframe was a significant procedural error. Furthermore, the court found that the applicant had not demonstrated any exceptional circumstances that would justify the late lodgement of the certificate. Consequently, the court dismissed the applicant's application for an unfair dismissal remedy.

As a result of the court's decision, the application for an unfair dismissal remedy was dismissed. The court did not grant the relief sought by the applicant, and the matter was concluded without further orders.

Orders