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Andrew Green v Bilco Group Pty Ltd

Andrew Green v Bilco Group Pty Ltd

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[2018] FWC 6818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andrew Green
v
Bilco Group Pty Ltd
(C2018/4561)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 NOVEMBER 2018

Application to deal with a general protections dispute involving dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to allow a further period within which application may be made should be exercised; extension of time granted.

[1] On 17 August 2018, Mr Andrew Green (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant said that he commenced employment with Bilco Group Pty Ltd (the Respondent) on 5 March 2018 and his employment had been terminated by the Respondent on 21 July 2018. 1

[2] On 25 October 2018, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his application. I have determined that the Applicant should be allowed a further period within which to lodge his application. These are the reasons for that decision.

[3] General protections applications involving dismissal must be made within 21 days after a dismissal took effect or in such further time as the Fair Work Commission (Commission) may allow. 2 As the dismissal took effect on 21 July 2018, an application for a remedy should have been lodged by no later than 11 August 2018. The application was therefore lodged outside of the time prescribed and was, in effect, lodged 7 days after the last day on which such an application could have been made.

[4] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] It is clear from the structure of s.366(2) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[6] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) that there are exceptional circumstances.

[7] I will turn then to the particular matters to which regard must be had.

Reason for the delay

[8] The reason…

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: [2018] FWC 6818
Decision Date: 5 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of Andrew Green v Bilco Group Pty Ltd, the applicant sought to bring a general protections dispute concerning his dismissal before the Fair Work Commission. The dispute arose from the applicant’s contention that his termination was harsh, unjust, or unreasonable under section 557A of the Fair Work Act 2009. The application was lodged beyond the statutory timeframe, and thus, the primary legal issue before the court was whether exceptional circumstances existed to warrant an extension of time. Additionally, the court had to consider whether the discretion to permit a further period within which the application might be made should be exercised.

The court recognised that the statutory time limits for bringing general protections disputes before the Fair Work Commission are strict, but they are not absolute. The court examined the reasons for the delay and found that the applicant had acted promptly in seeking legal advice and had demonstrated a genuine intention to comply with the statutory requirements. The court found that the applicant had shown exceptional circumstances, primarily due to the delay in receiving relevant information from the respondent. The court was satisfied that the delay was not due to any fault or negligence on the part of the applicant. The court also took into account the merits of the applicant’s claim, which appeared to have a reasonable prospect of success.

Having found that exceptional circumstances did exist, the court exercised its discretion to grant an extension of time for the application to be made. The court concluded that it was in the interests of justice to permit the applicant to bring the general protections dispute forward, despite the delay. The court's decision acknowledged the importance of procedural fairness and the need to balance the statutory time limits with the overarching principle of justice. The final orders included granting the application for an extension of time and setting a new deadline for the lodgement of the application to deal with the general protections dispute.

Orders