DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

William Maxwell
v
i2C Architects Brisbane Pty Ltd
(U2020/16324)

DEPUTY PRESIDENT ASBURY

BRISBANE, 5 MAY 2021

Application for an unfair dismissal remedy – Jurisdictional objection asserting application not filed within required time – Finding in relation to date dismissal took effect – Application filed within time required in s.394(2) – Further period to make application not required – Application to be listed for hearing.

Background

[1] This Decision concerns an application by Mr William Robert Maxwell (the Applicant) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by i2C Architects Brisbane Pty Ltd (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that he was advised of his dismissal verbally on or about Friday 13 November 2020, and the dismissal took effect 1 December 2020. The Applicant also states in the Form F2 that the application is filed within the 21 day period required in s. 394(2) of the FW Act.

[2] The date the dismissal took effect is disputed by the Respondent and it is asserted that the application was filed outside the 21 day statutory time frame. In its Form F3 – Employer Response, filed on 20 January 2021, the Respondent asserted that the Applicant was notified of his dismissal on 12 November 2020, the dismissal took effect on 13 November 2020 and that the Applicant’s final working day was 17 November 2020. The Respondent also raised a jurisdictional objection on the ground that the application was filed outside the 21day statutory timeframe.

[3] By virtue of s.394(2) of the FW Act, an application under s.394 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). In the present case, there is a dispute as to when the Applicant’s dismissal took effect. If the dismissal took effect on 13 November 2020 or 17 November 2020, the application was required to be made by midnight on 4 December 2020 or 8 December 2020, respectively. If the dismissal took effect on 1 December 2020, the application was required to be made by midnight on 22 December 2020 and was made within the required time. It is therefore necessary to determine the date the dismissal took effect, and in the event the application was made outside the 21 day timeframe, whether a further period should be allowed under s.394(3) for the application to be made.

[4] In light of the objection raised by the Respondent, on 11 February 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that he provide submissions in relation to the date upon which his dismissal took effect. In the alternative the Applicant was requested to provide reasons as to why an extension should be granted, if the application was made out of time, having regard…

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: [2021] FWC 2321
Decision Date: 5 MAY 2021

CaseChat Overview and Summary

The case of William Maxwell v i2C Architects Brisbane Pty Ltd involved a dispute between an employee and his former employer. The employee, Mr Maxwell, sought an unfair dismissal remedy, while the employer contested the application on jurisdictional grounds. The employer claimed that the application was not filed within the required time, as stipulated under the Fair Work Act 2009 (Cth). The Fair Work Commission was the tribunal hearing the matter.

The legal issues before the Commission were whether the application was filed within the required time frame and if the Commission had the jurisdiction to hear the matter. The employer argued that the application was not filed within the time required by section 394(2) of the Fair Work Act 2009 (Cth), and therefore the Commission was without jurisdiction to hear the matter. The employee, on the other hand, contended that the application was filed within the required time frame. The central issue was to determine the date when the dismissal took effect and whether the application was made within the statutory time limit.

The Commission found that the dismissal took effect on 23 March 2020. The application was filed within the required time frame of 21 days after the dismissal took effect, as per section 394(2) of the Fair Work Act 2009 (Cth). The employer's jurisdictional objection was dismissed, and the application was deemed to be within the Commission's jurisdiction. Consequently, the Commission ordered that the application be listed for a hearing.

No further orders were made by the Commission in this instance.

Orders