Sean Rojas v Fredon Security Pty Ltd - [2023] FWC 3281

[2023] FWC 3281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Sean Rojas
v

Fredon Security Pty Ltd

(U2023/10590)

COMMISSIONER PERICA

MELBOURNE, 22 DECEMBER 2023

Application for an unfair dismissal remedy

Mr. Sean Rojas (Applicant) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth.) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Fredon Security Pty Ltd (Respondent).

The application was filed by Mr. Tom Koletsos, an industrial relations consultant of the firm Just Relations Consultants at 12:02 AM on 27 October 2023.

In its Form F3 response, the Respondent objected to the application on the ground that the application is out of time and that the Applicant was not dismissed.

For the following reasons, I have decided to extend the time for filing the application under s 394(3).

Procedural History

On 23 November 2023, I made directions for the Applicant and the Respondent to file contentions, witness statements and other documentary material with respect to the jurisdictional objections.

The matter was heard on 7 December 2023 by way of a determinative conference. At the conference the Applicant represented himself, gave sworn evidence and was cross examined. The Respondent was represented by Ms. Jewlia Holt and Mr. Richard Laufer.

Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

Section 394(2) of the FW Act provides that such an application must be made:

(a)within 21 days after the dismissal took effect: or

(b)within such further period as the Commission allows.

When did the dismissal take effect?

The alleged dismissal took effect on 5 October 2023. There is a dispute between the parties as to whether the Applicant was dismissed under s 386(1)(b).

When was the application made?

The application was made at 12:02 AM on 27 October 2023 when it was received by the Melbourne Registry of the Commission by e-mail from Mr. Koletsos, who had been the Applicant’s paid agent.

Was the Application made within 21 days after the dismissal took effect?

As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21-day period prescribed… does not include the day on which the dismissal took effect.”[1]The Full Bench further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

The alleged dismissal took effect on 5 October 2023. The final day of the 21-day period was therefore 26 October 2023 and ended at midnight on that day. The application was filed two minutes late at 12:02 AM on 27 October – the 22^nd day after the dismissal.

The application was not made within 21 days of the date the dismissal took effect. I need to consider…

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 Sean Rojas v Fredon Security Pty Ltd

Details

AGLC: Sean Rojas v Fredon Security Pty Ltd [2023] FWC 3281
Case: [2023] FWC 3281
Decision Date: 22 DECEMBER 2023

CaseChat Overview and Summary

Sean Rojas made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Fredon Security Pty Ltd. The application was filed by Mr. Tom Koletsos on 27 October 2023, two minutes late. The Respondent objected to the application on the ground that it was out of time and that the Applicant was not dismissed. The Commission must first consider whether the application was made within 21 days of the dismissal taking effect, or within a further period as the Commission allows under s 394(3). The dismissal took effect on 5 October 2023, and the application was made on the 22nd day after the dismissal took effect. The Commission considered whether there were exceptional circumstances under s 394(3) for the late filing. The Applicant had engaged a paid agent to file the application, but the agent filed it two minutes late. The Commission found the Applicant was blameless in the late filing and that the representative error counts towards exceptional circumstances. The Commission considered the merits of the application and found that it was not possible to make any firm or detailed assessment of the merits without a full hearing. The merits were a neutral consideration for exceptional circumstances. The Commission found the representative error and lack of prejudice to the employer supported a finding of exceptional circumstances. The Commission extended the time for filing the application to 27 October 2023.

Orders