Boyan Bizoev v Node Energy Services Pty Ltd - [2022] FWC 890

[2022] FWC 890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Boyan Bizoev
v

NODE Energy Services Pty Ltd

(C2022/1168)

DEPUTY PRESIDENT BELL

MELBOURNE, 21 APRIL 2022

General protections dismissal dispute – application filed out of time – circumstances not exceptional - application dismissed.

Mr Boyan Bizoev (Applicant) made an application (Application) to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Node Energy Services Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act.

I note at the outset that the termination of the Applicant’s employment is not without some history. The Applicant’s employment was terminated on 4 June 2021 (a matter not in dispute). The letter of termination, dated 3 June 2021, states the termination was by way of redundancy. At the time, the Applicant challenged that dismissal and made an application (the unfair dismissal application) for an unfair dismissal remedy. Objections were taken by the Respondent, primarily on the ground that the dismissal was by way of genuine redundancy for the purposes of s.389 of the FW Act.

The jurisdictional objection to the unfair dismissal application was heard by Deputy President Boyce, who upheld the jurisdictional objection and dismissed that application. The Deputy President issued reasons for decision, dated 30 August 2021.[1] No appeal followed.

The Respondent has objected to the Application (i.e. the current application) on the ground that the Application is out of time.

It is a matter of record that the current application was made on 16 February 2022. It is not in dispute, and I so find, that the dismissal took effect on 4 June 2021. Given that s.366(1)(a) of the FW Act provides that an application must be made within 21 days after the dismissal took effect, the application was made approximately 236 days late.

Was the application made within such further period as the Commission allows?

Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the Applicant 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 Applicant and other persons in a similar position.

Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.

Reason for the delay

For the Application to have been made within 21 days after the dismissal took effect, it needed to have been with 21 days after 4 June 2021. The delay is the period commencing immediately after that time…

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: [2022] FWC 890
Decision Date

CaseChat Overview and Summary

In the matter of Boyan Bizoev v Node Energy Services Pty Ltd, the Fair Work Commission was required to determine whether the Applicant's application, made 236 days late, should be permitted under section 366 of the Fair Work Act 2009. The application, which alleged that the Applicant was dismissed in contravention of Part 3-1 of the Fair Work Act, was filed after the statutory 21-day period had elapsed. The Respondent objected to the application on the grounds that it was filed out of time and that the circumstances did not warrant an extension.

The Court considered various factors to determine if there were exceptional circumstances that would justify the late filing of the application. These included the reason for the delay, the action taken by the Applicant to dispute the dismissal, the prejudice to the employer, the merits of the application, and the fairness between the Applicant and others in a similar position. The Applicant's primary reason for delay was his decision to pursue an unfair dismissal remedy initially, which legally precluded him from making a general protections application. The Court found that the Applicant was aware of his rights and had taken steps to challenge the dismissal but had elected to proceed with the unfair dismissal application instead. Although the Applicant claimed new information and a legal review prompted the current application, the Court concluded that these factors did not sufficiently justify the extensive delay.

The Court found no exceptional circumstances that warranted an extension of time for filing the application. The delay was primarily due to the Applicant's strategic choice to pursue an unfair dismissal remedy, which was legally permissible but ultimately unsuccessful. The merits of the general protections claims, while not fully assessed, appeared weak given the prior findings of genuine redundancy. The Court also noted the prejudice to the Respondent, who would face the relitigation of common facts and the waste of resources spent on the earlier proceedings. Therefore, the Court dismissed the Applicant's application for the Commission to deal with the dismissal dispute. An order to this effect will be issued in conjunction with this decision.

Orders