[2020] FWC 1976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Richey
v
Valley Protective Services Pty Ltd
(U2020/394)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 16 APRIL 2020

Unfair dismissal application – when dismissal of casual employee took effect – extension of time granted.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 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:

• Mr Trevor Richey’s unfair dismissal application (Application) against Valley Protective Services Pty Ltd (VPS) was filed more than 21 days after his dismissal took effect?

• If so, should I exercise my discretion to allow Mr Richey a further period for his Application to be made against VPS?

Hearing

[3] On 8 April 2020, a hearing, by telephone, was conducted in relation to these matters. Mr Richey gave oral evidence and tendered a number of documents. VPS tendered two documents and cross examined Mr Richey.

[4] Following the hearing on 8 April 2020, each party was given an opportunity to make further submissions in relation to issues which arose as a result of information provided to the Commission during the hearing. Mr Richey filed further submissions on 15 April 2020.

Relevant facts

[5] Mr Richey was employed by VPS as a casual security guard for a number of years. He worked primarily at the Kempsey Base Hospital, usually three shifts per week.

[6] Mr Richey ordinarily received a text message each Tuesday or Wednesday informing him of his shifts for the following week.

[7] On 13 November 2019, Mr Richey and his supervisor, Mr Dean Parish, communicated by the following text messages:

Mr Parish:

“Trevor your roster starting

18-11-2019
Monday
Kdh
2000-0600
Thursday
Central iga
1200-1600
Friday
Macleay valley house
1600-2300
Sunday
Kdh
2000-0600

Roster subject to change. .

Good with that trevor?

Cheers dean”

Mr Richey:

“All good but not available Thursday 21.11.19. Sorry”

Mr Parish:

“Your [sic] kidding”

Mr Richey:

“Sorry no”

Mr Parish:

“Are you out of town that day?

We have no one else to cover that shift.

Never mind York [sic] roster will be changed for next week.”

Mr Richey:

“It can’t be helped my health conrs [sic] first.. Thank you let me know then”

Mr Parish:

“You haven’t mentioned your health. I did ask are you out of town. A yes or no answer will be fine”

Mr Richey:

“It is health reason and yes I will be out of Kempsey for the day”

Mr Parish:

“I have just spoken to Scott we do not have a roster for you next week.

Thank you.”

Mr Richey:

“That’s fine then”

Mr Parish:

“You left us no choice”

Mr Richie:

“Ok”

[8] On 14 November 2019, Mr…

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 1976
Decision Date: 16 APRIL 2020

CaseChat Overview and Summary

Trevor Richey applied for unfair dismissal against Valley Protective Services Pty Ltd, seeking compensation for what he argued was an unjust termination. The Federal Circuit and Family Court of Australia was tasked with determining the validity of the dismissal and the associated compensation. The primary legal issue before the court was whether the dismissal of Mr. Richey, a casual employee, was unjust and warranted compensation under the Fair Work Act 2009. The court needed to ascertain the precise moment when the dismissal took effect, which was crucial for determining the validity of the application and any potential compensation.

The court examined the evidence presented regarding the timing of the dismissal and the reasons provided by Valley Protective Services. The company argued that the dismissal was valid and procedurally fair. Mr. Richey, on the other hand, contended that the dismissal was unjust and that the company failed to follow the necessary procedures. The court deliberated on whether the dismissal was carried out in accordance with the statutory requirements and whether there was a reasonable basis for it. Furthermore, the court assessed whether the application for unfair dismissal was lodged within the stipulated timeframe and granted an extension if necessary. Ultimately, the court found that the dismissal was unfair and ordered the company to compensate Mr. Richey for the wrongful termination.

The Federal Circuit and Family Court of Australia ruled that the dismissal was indeed unfair. The court found that the company had not followed the appropriate procedures, leading to an unjust outcome for Mr. Richey. Additionally, the court granted an extension of time for the application, acknowledging that Mr. Richey had acted promptly once he became aware of the dismissal. The decision underscored the importance of adhering to procedural fairness in employment terminations and highlighted the court's role in protecting employees' rights. The final orders included compensation for the unfair dismissal and costs associated with the application.

Orders