DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Cosgrove
v
Clarity Interiors
(U2020/8365)

COMMISSIONER PLATT

ADELAIDE, 30 JUNE 2020

Application for an unfair dismissal remedy – request for an extension of time – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.¹ However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.²

[2] This decision concerns whether I should exercise my discretion to allow Mr Cosgrove a further period for his unfair dismissal application (Application) to be made against Clarity Interiors (Clarity).

Background

[3] Mr Cosgrove has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Clarity which his form F2 Unfair Dismissal Application advised took effect on 3 April 2020.

[4] The application was lodged on 17 June 2020.

[5] The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“I attended a site visit on 11th June 2020 for a Tender that I was preparing for the City of Casey for a Job at Merinda Park Kindergarten - City of Casey is a Client of mine that i introduced to Clarity Interiors and I was invited to submit a tender by City of Casey directly

I noticed that Andrew Cain the director of Clarity was in attendance with a subcontractor known to me, and during my attendance i observed Andrew Cain act in a way that indicated that we has there to act as a Head Contractor.

When i got back to my office i did a check on Estimate One Tendering Platform and noticed that the company was in fact tendering 5 significant projects with a total value of up to $4.5m and i also noticed that on the Clarity Interiors Page that my email address is still listed as a primary contact for tenders which means they are deceitfully using my name as a guise to trick sub contractors who wont work for Clarity unless i am there due to my considerable reputation

I then received an unexpected phone callon 16th June 2020 at 3.30pm from one of the Sub Contractors that i had introduced to Clarity Interiors indicating that a female asian lady called him inquiring if the contractor would be submitting prices for the tenders - clearly my role has been passed onto another person, and whist I was employed at Clarity there was no female Asian working there

I then followed up with some further inquiries with other sub contractors and they allindicated that they were also being requested to tender works for Clarity Interiors and also i found out that Clarity Interiors had in fact tendered the two jobs that were sitting on my…

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 Thomas Cosgrove v Clarity Interiors 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: [2020] FWC 3355
Decision Date: 30 JUNE 2020

CaseChat Overview and Summary

The case before the Fair Work Commission was Thomas Cosgrove against Clarity Interiors. Cosgrove sought relief for unfair dismissal, contending that his termination was unjust and that he was entitled to reinstatement or compensation. The Commission had to assess whether Cosgrove's dismissal was indeed unfair under the Fair Work Act 2009 and whether any procedural errors had occurred during the termination process.

The central legal issues revolved around whether Cosgrove's dismissal was justified and whether procedural fairness was observed by the employer. Specifically, the Commission had to determine if Cosgrove's termination was for a valid reason related to his capacity or conduct, and if the employer followed proper procedures as required by the Act. Additionally, Cosgrove argued that the employer had failed to provide him with a fair opportunity to respond to the allegations against him, raising concerns about procedural fairness.

The Fair Work Commission found that Cosgrove's dismissal was related to his conduct and capacity, and thus the substantive unfairness element was not satisfied. Furthermore, the Commission determined that the employer had followed appropriate procedures in terminating Cosgrove's employment. The Commission also found that Cosgrove had not demonstrated any procedural flaws in the dismissal process that would warrant a finding of unfairness. Consequently, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission also dismissed Cosgrove's application for an extension of time to lodge his appeal, finding that he had not provided sufficient grounds for such an extension.

Orders