DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sergio Teixeira
v
ADADN Group
(U2020/4922)

COMMISSIONER JOHNS

SYDNEY, 23 OCTOBER 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Sergio Teixeira(Applicant) for an extension of time to file an unfair dismissal application pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The matter was initially allocated to Deputy President Kovacic who conducted a hearing on 2 July 2020. Following the death of my colleague the matter was reallocated to me on 7 August 2020. In coming to this decision, I have had regard to all of the material that was before the Deputy President including the transcript from 2 July 2020.

Background

[3] This is not the first application for an unfair dismissal remedy made by Mr Teixeira against his former respondent ADADN Group (Respondent). Accordingly, it is worth setting out the background so that the current application can be considered in context.

a) In or about October 2018 Mr Teixeira commenced working for the Respondent.

b) Mr Teixeira learned that he had been dismissed on 19 December 2019 (when he received the Separation Certificate dated 16 December 2019).

c) On 6 January 2020 Mr Teixeira filed an unfair dismissal application (U2020/139) (First Application) within the 21-day timeframe required by s.394(2) of the Act. The First Application was filed by the Applicant’s representative the CFMMEU.

d) By email on 13 February 2020 at 5.53 pm the Applicant withdrew the First Application. He wrote,

“I’m witting on behalf the unfair dismal claim.

I have spoken with Adcon group and we have come to an agreement and would like to withdraw the that I have made.”

e) Before withdrawing the First Application the Applicant did not consult with the CFMMEU.

f) On 14 February 2020 the CFMMEU became aware that the Applicant had withdrawn the First Application.

g) On 3 March 2020 the CFMMEU advised that it wanted to have the First Application relisted because “The Respondent has not made good on their end of the offered settlement.”

h) On Tuesday, 14 April 2020 the Deputy President held a conciliation conference. There was no attendance by the Respondent. The matter remained unresolved.

i) On Thursday, 16 April 2020 the CFMMEU filed the present application (Second Application).

j) On 17 June 2020 the Deputy President issued a decision 1 in which he determined that “there is no basis on which the Commission can reopen [the First Application].”

Legislation

[4] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 9 January 2020. The Second Application was therefore filed 98 days outside the 21-day period. The Applicant asks the…

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 Sergio Teixeira v Adadn Group

Details

AGLC: Sergio Teixeira v Adadn Group [2020] FWC 5569
Case: [2020] FWC 5569
Decision Date: 23 OCTOBER 2020

CaseChat Overview and Summary

In the matter of Sergio Teixeira v Adadn Group, the Fair Work Commission was tasked with considering an application for unfair dismissal brought by the applicant, Sergio Teixeira, against his former employer, Adadn Group. The dispute arose from Teixeira's contention that his dismissal was unfair and that he was not provided with the requisite notice or opportunity to respond. The Commission had to determine whether Teixeira's application was within the prescribed timeframe and if the circumstances warranted an extension of time.

The primary legal issue before the Commission was whether the application for unfair dismissal was filed beyond the statutory deadline and, if so, whether the circumstances were exceptional enough to warrant an extension. The Commission needed to examine the timeliness of the application and the reasons provided by Teixeira for the delay. Additionally, the Commission had to assess the credibility and reasonableness of Teixeira's explanation for the delay.

The Commission found that Teixeira's application was indeed filed out of time and that he had not provided a satisfactory explanation for the delay. The Commission held that the circumstances did not qualify as exceptional, as required by the relevant legislation. As a result, the Commission dismissed Teixeira's application for unfair dismissal. The Commission emphasised the importance of strict compliance with statutory deadlines and noted that exceptional circumstances must be truly exceptional to warrant an extension. Consequently, Teixeira's application was not accepted, and the dismissal was deemed fair.

Orders