Ashleigh Brown v Sport Earthworks & Home Maintenance

[2014] FWC 9403

[2014] FWC 9403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ashleigh Brown
v
Sport Earthworks & Home Maintenance
(C2014/6136)

COMMISSIONER HAMPTON ADELAIDE, 31 DECEMBER 2014

Application to deal with contraventions involving dismissal - extension of time required - repeated failure to comply with directions - no material provide despite repeated opportunities to do so - no extension granted - no valid application - file closed.

[1] Mr Ashleigh Brown has made an application under s.365 of the Fair Work Act 2009 (the FW Act) on the basis that his dismissal, which apparently took effect from 18 July 2014, was contrary to the General Protection 1 provisions of that Act. Mr Brown was a builder employed by Sport Earthworks & Home Maintenance (the employer), prior to his dismissal. The business of the employer is conducted solely by Mr Gavin Patterson.

[2] I note that Mr Brown alleges that he was discriminated against due to a medical condition and subsequently dismissed. Mr Brown further contends that the employer incorrectly provided a false reason for his dismissal on the separation certificate; that being that there was a decline in work.

[3] As stated above, the date upon which Mr Brown contends that he was dismissed was 18 July 2014. The application was lodged on 30 August 2014, which is 43 days after the dismissal took effect.

[4] Section 366 of the FW Act provides as follows:

“366 Time for application

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

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(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
(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.”

[5] Accordingly, the application was lodged 22 days outside of the time required by s.366 of the FW Act.

[6] The matter was initially listed for a conference by telephone before the Commission on 7 October 2014. The conference was unable to proceed as the employer failed to participate. The Commission was subsequently informed by Mr Patterson that he had no knowledge of this application and had been working up in Darwin for three months, had not had access to his local PO Box, and the email address provided on the application was incorrect. The employer provided the correct details and was sent the application and supporting documentation.

[7] Mr Brown was informed of the above and was notified that a new conference date would be set.

[8] On 20 October 2014, the Commission received the Form F8A - Response to an Application for FWC to deal with a General Protections Dispute from the employer. The response indicated that the reason for dismissal was that there was no available work for Mr Brown and that he was only employed for a certain job, which had been substantially completed.

[9] The matter was re-listed for a conference by telephone on 5 November 2014. Both Mr Brown and Mr Patterson participated in the conference. During the conference it was noted that if the Commission was to deal with the substantial merit of the application and potentially provide a certificate as contemplated by s.368(3) of the FW Act, an extension of time (EOT) under s.366(1)(b) was required. The employer advised that it strongly objected to an extension of time being given.

[10] Following the conference, on 7 November 2014, Directions were issued to the parties, specifically relating to the extension of time being sought by the applicant, and this required the following:

“…

1. Mr Brown is by 21 November 2014 to provide to the Fair Work Commission (FWC), and Sport Earthworks & Home Maintenance, the respondent, written submissions on the EOT application. To the extent that factual issues are relied upon, these should be provided in the form of an affidavit or statutory declaration.

2. The Respondent is by 1 December 2014 to provide to the FWC, and to the applicant, written submissions on the EOT application. To the extent that factual issues are relied upon, these should be provided in the form of an affidavit or statutory declaration.

3. Should the either party seek to challenge the evidence provided in this matter, they are to notify the Commission by 5 December 2014 with a view to the matter being set down for a hearing on the EOT application.

4. In the absence of a notification under 3. above, the applicant is by 8 December 2014 to provide to the FWC and the respondent any final submissions in response.

[4]Where a notification is given under 3. above, the Commission will make expeditious arrangements for a hearing to be conducted and to deal with any applications for permission to be represented that may be advanced in that context.

[5]In the absence of a hearing, the Commission will determine the EOT application based upon the materials provided in accordance with these directions.”

…”

[11] On 2 December 2014, the Commission staff contacted Mr Brown in relation to the absence of any submissions being filed by him. Mr Brown stated that he had not received the Directions and that he no longer had access to his emails and had changed his address. Previously, the applicant had engaged with the Commission via email and I note that no notification of a change of address or contact details had been provided.

[12] Despite having reservations about Mr Brown’s inaction, on 4 December 2014, the Commission issued revised Directions in relation to the matter. The Directions were sent to the new contact details provided by the applicant. The Directions were similar to those outlined above, however the following was included:

“...

1. Mr Brown is by 16 December 2014 to provide to the FWC, and Sport Earthworks & Home Maintenance, the respondent, written submissions on the EOT application. To the extent that factual issues are relied upon, these should be provided in the form of an affidavit or statutory declaration.

2. In the event that Mr Brown does not provide the submissions required by direction 1. above by the specified date, the s.365 application will be dismissed without further notice or hearing. (Emphasis added)

...”

[13] Despite there being no obligation to do so, on 16 December 2014, the Commission contacted Mr Brown as no submissions had been received. Mr Brown advised that he had posted the submissions three days prior. The applicant also indicated that he had not served a copy on the employer as yet.

[14] On 18 December 2014, the Commission again followed up with the applicant in relation to his submissions. Mr Brown again indicated that he had sent the submissions to the Commission 7 or 8 days before the conversation, and was unaware as to why the Commission had not received them. The applicant advised that he would send the submissions by Registered Post to ensure they were received by the Commission. Mr Brown was reminded that as per the revised directions, if the submissions were not received by the Commission, the application would be dismissed without further notice or hearing.

[15] To date, no submissions from Mr Brown have been received by the Commission in relation to this matter nor has the applicant made any further contact with the Commission. It is now almost three weeks from the time that Mr Brown indicated that he had originally sent the submissions and over almost two weeks since the time that he said they would be further provided by Registered Post.

[16] The Commission has also not received any contact from the respondent employer and there is no indication that any submissions from Mr Brown have been served upon that party.

[17] Section 366 of the FW Act provides that the Commission has the discretion to extend the time period and may do so if satisfied that there exceptional circumstances, taking into account ss.366(2)(a)-(e). 2 Mr Brown has failed to provide evidence or submissions that would support a finding of exceptional circumstances.

[18] The s.365 application makes a number of assertions about health issues leading to the delay in lodgement however in the absence of any evidence or material to support those matters it is not appropriate to rely upon such contentions in the context of a disputed application.

[19] Mr Brown has been provided with a number of reasonable opportunities to provide material to support the EOT application and has not done so. Mr Brown has also been advised on two occasions that the submissions have not been received and further that a failure to provide the required material would result in the dismissal of his application without further notice or hearing.

[20] In the absence of a finding of exceptional circumstances, there is not presently a valid application before the Commission.

Conclusion

[21] In the circumstances, no proper basis for extending the required time limit has been provided to the Commission and the grounds for any exercise of discretion under s.366 of the FW Act do not arise. As a result, there is no valid application before the Commission and the file will be closed.

 1 Part 3-1 of the FW Act.

 2   The operation of this discretion is outlined in Nulty v Blue Star Group Pty Ltd [ 2011] FWAFB 975.

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