Anthony Murray v Plumridge Investments Trading P/L T/A Tyre Power

[2011] FWA 6679

[2011] FWA 6679

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Anthony Murray
v
Plumridge Investments Trading P/L T/A Tyre Power
(C2011/5115)

COMMISSIONER GAY MELBOURNE, 29 SEPTEMBER 2011

General protections dispute involving dismissal - extension of time for lodging application.

[1] On 14 July 2011 the Applicant (Mr Anthony Murray) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) with Fair Work Australia.

[2] On 19 July 2011 the matter was listed for conference on Monday 8 August 2011 in Melbourne.

[3] On 28 July 2011 solicitors acting for Plumridge Investments Trading P/L T/A Tyre Power (the Respondent) wrote to my Associate, raising a number of issues and submitting that the matter should not proceed on 8 August. One on the issues raised by the Respondent was that the application had been made out of time.

[4] Following consultation with the parties, the listing for 8 August was cancelled and the parties were advised that the matter would be relisted for an ‘Extension of time hearing and possible conciliation’.

[5] On 16 August 2011 my Acting Associate forwarded the following correspondence to the parties:

“This matter was lodged with Fair Work Australia (the Tribunal) on 14 July 2011. On the information provided it appears that Mr Murray (the Applicant) was dismissed by Plumridge Investments Trading Pty Ltd T/A Tyre Power (the Respondent) on 7 May 2011. As you may be aware, section 366(1)(a) of the Fair Work Act 2009 requires that applications of this type be lodged within 60 days after the dismissal took effect. The Application appears to have been lodged outside the time allowed. The Respondent has objected to the matter coming on for conciliation conference before the out of time point is determined by Fair Work Australia. Section 366(1)(b) provides Fair Work Australia jurisdiction to extend the allowable time in certain circumstances.

As a consequence the parties were advised that the matter would be listed to hear argument relevant as to whether or not Fair Work Australia should extend the time in which the Application could be made. On 5 August 2011 the parties were advised by telephone that if an extension of time was granted, a conciliation would then be held. If an extension was not granted, the matter would be dismissed.

On 15 August 2011 the Applicant was advised by telephone that Commissioner Gay intended to list the extension of time question and required both parties to attend the hearing in person.

The Applicant indicated that he may no longer wish to participate in such a hearing. If the Applicant wishes to withdraw his application, a Form F50 must be lodged with Fair Work Australia, marked “Attention - Commissioner Gay”. For convenience, I have enclosed a copy of the form with this correspondence.

If no Form F50 is received by Friday 19 August 2011 a Notice of Listing will issue from this office, setting the matter down at an early date for hearing of the extension of time objection and possible conciliation. The extension of time issue would be dealt with first on the appointed day and if time is not extended the application will be dismissed as out of time. If time is extended by the Commissioner he will then immediately conduct a conference of the parties.”

[6] No advice was received from the Applicant and the matter was set down for ‘Extension of time hearing and possible conciliation’ on 29 August 2011.

[7] On 29 August the matter came on in Melbourne. The Respondent appeared and the Applicant did not.

[8] On the same day I wrote to the Applicant as follows:

“On 16 August 2011 my Acting Associate wrote to the parties in this matter setting out the position in relation to your application; that Plumridge Investments Trading Pty Ltd T/A Tyre Power (the respondent) had objected to the late lodgement of the application and to conciliation occurring before that issue was resolved.

You were advised that should it have been your intention not to pursue the application that a Form F50, a copy of which was provided to you, should be lodged. You were further advised that if no withdrawal had been received by Friday 19 August 2011 the matter would be set down for hearing.

On 24 August the parties were sent a Notice of Listing setting the matter down for Extension of Time hearing and possible conciliation at 10.00 am, Monday 29 August at 11 Exhibition Street Melbourne.

Shortly after 10.00am this morning the matter came on. The respondent appeared and you did not appear.

Unless you provide this office evidence, satisfactory to me, as to today’s non-appearance, by close of business Friday 3 September 2011, I propose to then consider the respondent’s objection on the information then available to me.”

[9] The Applicant telephoned my chambers on 30 August and my Associate spoke with him on 31 August 2011. My Associate advised the Applicant he would need to provide a written response to the correspondence forwarded by Fair Work Australia.

[10] The Applicant has not provided any written material in response to the correspondence forwarded by my Associate.

[11] The Respondent on 28 July 2011 contended that “the Application has been made out of time - .... that Anthony Murray’s employment was terminated on 7 May 2011 and it appears the Application was made on 14 July 2011, more than 60 days after the dismissal took effect. Section 366(1)(a) requires the Application under Section 365 to be made within 60 days of the dismissal”.

[12] Relevantly, s.366 of the Fair Work Act 2009 reads as follows:

366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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

[13] On the information before me the application is lodged out of time. As there is nothing before me which could justify an extension of the statutory limit, I decline to extend time and dismiss the application.

[14] An Order [PR515095] to that affect was issued on 29 September 2011.

COMMISSIONER

Appearances:

G Plumridge and D McRae appeared for Plumridge Investments Trading P/L

T/A Tyre Power.

Hearing details:

2011.
Melbourne:
August 29.

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