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 My previous report is here.

  • The Appeal decision in full is here.

Introduction

In this article, I reported on a number of cases relating to applications that were outside of the 21-day time limit. Once such case, in which the application was dismissed was appealed and upheld

Background

  • The applicant’s casual employment ended after his last shift on 1 October 2014 and the relevant date for determining the date upon which the 21-day application period commenced is 2 October 2014 (out of time by 1,383 days).
  • The applicant was unaware that his employment had ended.
  • He was on workers’ compensation and considered he had obligations to participate in rehabilitation
  • He had not received oral or written communication of his employment ending.
  • He was receiving legal advice for some of the period and his legal advisors did not advise him to make an application.
  • He said that as a delegate for the National Union of Workers it was his understanding that The respondent did not consider the practice of failing to offer shifts to an injured worker to be dismissal.
  • The applicant had not received a letter from the respondent, notwithstanding it was the respondent’s policy to send such a letter to employees who had not worked for 90 days:
  • The applicant did not dispute his dismissal until he made his application on 5 August 2018.
  • The period of delay weighs against the exercise of that discretion in his favour.

The appeal (persistence pays off)

The applicant in this matter lodged an appeal, for which permission to appeal is required, against decisions issued by Deputy President Booth on 19 February 2019 (first decision) and 15 July 2019 (second decision). In the first decision, the Deputy President determined that an application was not lodged within the 21-day time period. The applicant had lodged an earlier appeal against the first decision, but in a decision issued on 5 April 2019 (appeal decision) the Full Bench refused him permission to appeal. In the second decision, the Deputy President refused to grant the applicant an extension of time to lodge his application.

In his current appeal the applicant contends that both the first decision and the second decision were in error because his application was filed within the time limit.

Explanatory

The applicant has continuously received his weekly compensation payments from The respondent because Wesfarmers, as the insurer, was not able to pay him directly, and that this was so even in cases where a person is no longer employed but continues to be entitled to weekly compensation payments.

For the next two years the applicant continued to send medicate certificates to the respondent, seeking a return to work on light duties. Throughout this period, he received workers’ compensation payments. On 20 June 2018, the applicant wrote to the respondent seeking a return to work for rehabilitation arising from his workers’ compensation claim. In response,

The respondent advised the applicant on 20 July 2018 that his employment had ceased in 2014. The Full Bench noting:

“It is not apparent why the respondent did not tell the applicant at an earlier time that it considered his employment to have ended”.

In any event, this left the respondent open for the applicant’s general protections dismissal application contending that his employment was terminated by the respondent on 20 July 2018, and that the reason for his dismissal was his request of 20 June 2018 for a return to work for rehabilitation, which he characterises as the exercise of a workplace right.

The decision

In the appeal decision, the Full Bench determined to refuse permission to appeal fundamentally to allow the matter to follow the normal process of such matters, ie a conference to determine whether the parties could come to a mutual arrangement.

Failing this, the FWC (being an application relating to an Adverse Action) would issue a certificate on the merits of the case; with the applicant then able to pursue the matter in the Federal Court.

It should be noted that the respondent maintained that the applicant was not dismissed; being a casual employee, the employment simply ended at the end of his last shift. When in fact, he continued to be paid workers compensation, and therefore taking this into consideration the application was made within the 21-day time limit.

In upholding the appeal in the applicant’s favour, the Full Bench stated:

“…we conclude that the first and second decisions were both attended by appealable error. Because the errors are jurisdictional in nature and have the result of unjustly denying [the applicant] the capacity to bring his general protections claim before a court, we consider that it is appropriate to grant permission to appeal and uphold the appeal. In substitution for the first and second decisions…It should be obvious, based on our reasoning, that this conclusion does not involve the expression of any view concerning the date of the termination of [the applicant’s] employment or the merits of his application generally”.

Commentary

In my (humble) opinion, the respondent in this matter attempted to hide its error behind the skirts of its lawyers. Instead of stating that the outset that the applicant had no work until he was fully fit, and that compensation payment would continue until (?) or until the applicant was able to fulfil the inherent requirements of the position.

If I was the respondent (and I am not), I would settle this matter or face the prospect of burgeoning legal costs in the Federal Court.

On the other hand, in his persistence to have the matter heard, the applicant has won the right to apply to the Federal Court to argue the merits of his case. Having said this, the applicant still has a hard road ahead.

In the applicant’s own word (to me via email):

“Just a minor point. I think the decision essentially stands for the principle that the Commission is not conferred with the jurisdiction to interrogate the merits of the s365 application and dismiss the application prior to conducting a conference and issuing a certificate.

“This includes determining if there was an employment relationship at the time of the alleged dismissal. My argument that the relationship subsisted during my workers’ compensation claim was not necessarily relevant to the appeal succeeding.

“You might be interested to know that Coles is appealing the decision of the Commission to the Full Federal Court”.