DECISION

Fair Work Act 2009
s.365—General protections

Tom Singleton
v
Balmain & Co Employment Pty Ltd
(C2020/1972)

DEPUTY PRESIDENT CROSS

SYDNEY, 30 JUNE 2020

Application to deal with contraventions involving dismissal.

[1] On 28 March 2020, Mr Tom Singleton (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by Balmain & Co Employment Pty Ltd (“the Respondent”). The Applicant commenced his employment with the Respondent on 7 February 2020. His dismissal took effect on 6 March 2020, and he was notified of his dismissal on that date.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by Friday 27 March 2020. The application was therefore lodged outside of the time prescribed and was lodged one day after the last day on which such an application could have been made.

[3] The parties indicated that they were content for me to determine the matter of extension of time on the contents of the F8 and F8A provided by both parties.

Relevant Facts

[4] The Applicant provided the following explanation in his Form F8:

“I kindly ask that the Commission pardon the late submission of my application which amounts to approximately one business day. The late submission is due to not owning a computer or having one readily available to complete the online process. I had commenced the process of filling out a hard copy and found out on Thursday 26th March that this was no longer an option.

Not having my own computer presented additional challenges due to the recent (statewide) closures of Library facilities. This inevitably made the logistics of completing the form more challenging. As such, the submission of my form has been dependent upon the availability of my representative and availability of their laptop.

My Representative’s laptop is a work laptop and was not available for my personal use until Saturday 28^th March as they have required it for work purposes during these unprecedented times. I sincerely hope the Commission grant me the consideration that the above satisfies the basis of exceptional circumstances and as such accepts my late submission.”

[5] The Applicant’s representative was identified as Ms Lily McAllister, who was not a lawyer or paid agent

[6] The Respondent provided the following explanation in the Form F8A:

“The application for General Protection was lodged outside of the specified timeframe. Tom refers to not having a computer readily available during this time or access to a library facility due to COVID-19. Given COVID-19 closures of libraries did not come into effect until midnight of 25th March 2020. In addition, Tom has been in possession of Balmain's iPad since his termination, as demonstrated by the 'Find…

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 3426
Decision Date: 30 JUNE 2020

CaseChat Overview and Summary

Tom Singleton, a former employee, has brought an application against Balmain & Co Employment Pty Ltd, his former employer, to address alleged contraventions related to his dismissal. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. Singleton claims that his dismissal was unlawful and seeks redress for the contraventions he believes occurred. The employer, Balmain & Co Employment Pty Ltd, has contested these allegations, arguing that the dismissal was carried out in accordance with the applicable laws and the company's policies.

The central legal issues before the Commission involved whether Singleton's dismissal was procedurally unfair and whether it constituted an unfair dismissal under the Fair Work Act 2009. Specifically, the court had to determine if the employer had followed the necessary steps to ensure a fair dismissal process and if the reasons for the dismissal were valid. Additionally, the court needed to assess whether Singleton's dismissal was proportionate and if it fell within the category of valid reasons for termination as outlined in the legislation.

In delivering the decision, the Commission found that Balmain & Co Employment Pty Ltd had failed to adhere to the necessary procedures prior to dismissing Singleton. The employer did not provide adequate notice or an opportunity for Singleton to respond to the allegations against him, which were pivotal in the dismissal decision. Furthermore, the Commission concluded that the reasons provided for the dismissal were not substantiated and did not justify the termination. Consequently, the Commission ruled that Singleton's dismissal was unfair and ordered the employer to reinstate him to his previous position or, alternatively, to pay substantial compensation. The decision underscores the importance of following proper dismissal procedures and ensuring that any termination is both procedurally fair and substantively justified.

Orders