Spenser Clarke v Uniti Group Ltd - [2023] FWCFB 133

[2023] FWCFB 133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Spenser Clarke
v

Uniti Group Ltd

(C2023/2763)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY

BRISBANE, 31 JULY 2023

Appeal against decision [2023] FWC 1011 and order PR761490 of Commissioner Schneider at Perth on 28 April 2023 in matter number C2022/8114.

Background

Determining the date on which an employee’s dismissal takes effect has significant implications for persons seeking an unfair dismissal remedy, and for those making an application for the Commission to deal with a dismissal related general protections dispute or an unlawful termination dispute. Clear and unambiguous communication from an employer to an employee about the date the employee’s dismissal takes effect is paramount, as is a proper examination of the factual circumstances surrounding an employee’s effective date of dismissal. After all, that an application under s. 365, s. 394 or s. 773 of the Fair Work Act 2009 (Act) is made within the time prescribed following the day on which a dismissal took effect is a jurisdictional fact. As well as the denial of access to a cause of action in respect of a dismissal, this case highlights the potential impact on a party with existing mental health issues, when clear communication and a diligent factual examination about the effective date of dismissal are absent.

The Appellant, Mr Spenser Clarke applies for permission to appeal, and if granted appeals a Decision[1] and Order[2] of Commissioner Schneider both made on 28 April 2023 dismissing the Appellant’s application under s. 365 of the Act for the Commission to deal with a dispute in which the Appellant alleged that his dismissal by the Respondent, Uniti Group Ltd was in contravention of Part 3-1 of the Act. The application was dismissed because the Commissioner concluded that the application had been lodged outside of the time prescribed by s. 366(1)(a) and the Commissioner was not satisfied that there were exceptional circumstances which might enable the Commission to allow the application to be made within a further period as permitted by s. 366(1)(b).

Summary

For the reasons which follow we consider that the Commissioner was in error in concluding that the application had been lodged outside of the time prescribed. The date the Appellant’s dismissal by the Respondent took effect was 16 November 2022, and the application, having been made on 7 December 2022, was within time. Permission to appeal will be granted, the appeal will be upheld, the Decision and Order made by the Commissioner will be quashed and the Appellant’s application will be remitted to the Regional Coordinator for Region One for allocation to another member of the Commission, to conduct a conciliation conference as required by s. 368 of the Act. Alternatively, even if we are wrong about this, we would nevertheless grant permission to appeal, uphold the appeal and quash the Decision and Order on the basis that the Commissioner erred:

in failing to take into account relevant considerations, which we explain below; and
in…

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.

Keep reading for free

Create a free CaseChat account to read Spenser Clarke v Uniti Group Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWCFB 133
Decision Date: 31 JULY 2023

CaseChat Overview and Summary

Spenser Clarke has appealed against a decision and order of Commissioner Schneider dismissing his application under s. 365 of the Fair Work Act 2009. The appeal concerns the effective date of dismissal by the Respondent, Uniti Group Ltd, and whether the Appellant's application was lodged within time. The central issue was whether the Commissioner erred in concluding that the Appellant's dismissal took effect on 10 November 2022, rather than on 16 or 17 November 2022. The appeal was also concerned with whether the Commissioner erred in failing to take into account relevant considerations and in concluding that the Appellant took no action to dispute his dismissal.

The Fair Work Commission concluded that the appeal should be upheld, and that the Commissioner erred in concluding that the Appellant's dismissal took effect on 10 November 2022. Instead, the effective date of dismissal was 16 November 2022. The Commission also found that the Commissioner failed to take into account relevant considerations, including the ambiguity of the termination letter, the Appellant's mental health condition, and his action in disputing the dismissal. These errors caused the discretion to miscarry, and the appeal was upheld on these grounds. The decision and order made by the Commissioner were quashed, and the application was remitted to the Regional Coordinator for Region One for allocation to another member of the Commission to conduct a conciliation conference.

Orders