Brent Dreyer v Free Solar Personnel Pty Ltd

[2012] FWA 5202

[2012] FWA 5202

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Dreyer
v
Free Solar Personnel Pty Ltd
(U2011/14182)

COMMISSIONER SIMPSON BRISBANE, 19 JUNE 2012

Application to amend - Respondent incorrectly named - Application granted

[1] This decision, now edited, was delivered ex tempore at the conclusion of the Hearing on 15 June 2012:

[2] I’ve considered the material that’s been before the Tribunal up to the point when the amendment application was made. On the basis of the material before me, it does appear that the original application was served at the registered business address of Free Solar Personnel Pty Ltd (the Respondent). It would also appear from the material that Mr Balmanno was aware of the factual background to the dispute on the basis of material on the file.

[3] I’ve had regard to the authority in the matter of Tobias Pty Ltd v Vidacic 1 in a not dissimilar circumstance to this one. Ultimately, the Tribunal’s responsibility is to ensure that natural justice is provided to parties against whom a claim or charge is made and they must be given a reasonable opportunity to appear and present a case in response to it. In the circumstances of this case I am satisfied that the Respondent would have been aware of the originating application. It’s not unreasonable to infer from the material that the Respondent - in that Mr Balmanno is a director of that company - would have been aware that the application was on foot.

[4] In my view it is relevant that I give consideration to the fact that this amendment application is made some six months after the time when the original application was filed, so it’s not inappropriate to give consideration to the sorts of issues that might arise in an application for an extension of time.

[5] I do believe that the circumstances in this matter are somewhat exceptional in that they are not the sorts of instances that occur ordinarily. The ordinary meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary, unusual or special, and that is a view expressed in the Full Bench decision in Nulty v Blue Star Group Pty Ltd.  2

[6] On the basis of my views about the circumstances that led to the filing of the application on 15 May, it’s my view that it’s appropriate to amend the application as sought by the applicant. On that basis I’ll exercise my discretion under section 586 to do so to correct the error. It is so ordered.

COMMISSIONER

Appearances:

Mr B Dreyer on his own behalf.

Mr C Balmanno for Free Solar Personnel Pty Ltd

Hearing details:

2012.
Brisbane.
June 15.

 1   Tobias Pty Ltd v Vidacic

 2   Nulty v Blue Star Group Pty Ltd.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR525323>