DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vaughan Saunders
v
Western Diesel and Turbo Service
(U2020/10767)

COMMISSIONER PLATT

ADELAIDE, 24 AUGUST 2020

Application for an unfair dismissal remedy – request for an extension of time – application lodged within time – extension of time not required.

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

Background

[2] Mr Saunders has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Western Diesel and Turbo Service, which his form F2 Unfair Dismissal Application advised took effect on 15 July 2020.

[3] The application was lodged on 7 August 2020.

[4] On 14 August 2020, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 21 August 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Saunders was directed to provide a statement concerning the extension of time and any documents to be relied upon by 19 August 2020.

[5] On 15 August 2020 the Respondent filed a Form F3 Employer Response, which indicated that Mr Saunders resigned on 15 July 2020.

[6] On 19 August 2020 Mr Saunders provided his material. This material included a copy of a resignation letter dated 15 July 2020 which provided the employer with 2 weeks’ notice and advised that Mr Saunders’ last day of employment would be 29 July 2020.

Hearing

[7] A hearing was conducted by way of telephone conference on 21 August 2020. A sound file record of the telephone conference was kept. Mr Saunders represented himself. Mr Henderson (Director) represented Western Diesel and Turbo Service.

[8] Mr Henderson accepted that Mr Saunders’ cessation of employment did not take effect until 29 July 2020.

[9] On this basis Mr Saunders’ application has been made within the time permitted and does not require an extension of time.

[10] A conciliation conference was then conducted but did not resolve the matter.

[11] The parties are located in Western Australia and accordingly the file will be referred to a Perth member for hearing.

[12] An Order³ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr V Saunders on his own behalf.

Mr D Henderson on behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
August 21.

Printed by authority of the Commonwealth Government Printer

1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

2 Section 394(3) of the Act

3 PR722060

Vaughan Saunders filed an application for unfair dismissal remedy against Western Diesel and Turbo Service. The primary dispute centred on the respondent's decision to terminate Saunders' employment and the subsequent claim for unfair dismissal. The case was heard in the Fair Work Commission.

The legal issues before the court involved whether the application for an unfair dismissal remedy was lodged within the requisite time frame and if an extension of that time was necessary. The court had to determine whether the respondent's decision to terminate Saunders' employment was justified, and if the application was within the stipulated period, whether an extension was warranted.

The court considered the timeliness of Saunders' application, noting that it was indeed lodged within the required time frame. Despite this, the court found that an extension of time was not necessary. The court assessed the respondent's justification for termination and concluded that the dismissal was fair, based on the evidence presented. Consequently, the application for unfair dismissal was dismissed.

In light of the findings, the Fair Work Commission ruled that the application for an unfair dismissal remedy was not to be granted, and no extension of time was required. The decision underscored the importance of timely applications while also affirming the respondent's right to terminate employment under the circumstances presented.

Vaughan Saunders v Western Diesel and Turbo Service

DECISION

Introduction

Background

Hearing

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established