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Burgess v General and Window Cleaning Pty Ltd

Burgess v General and Window Cleaning Pty Ltd

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Case Copied 11 May 2011 8 min read

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[2011] FWA 2802

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donald Ross Burgess
v
General and Window Cleaning Pty Ltd
(U2011/5319)

COMMISSIONER BISSETT

BRISBANE, 11 MAY 2011

Application for unfair dismissal - jurisdiction - extension of time - representative error.

[1] Mr Burgess (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal. The application was made some 11 weeks and 5 days beyond the statutory time limit of 14 days for the lodgment of such an application.

[2] Mr Burgess was dismissed from his employment on 18 November 2010. His application for unfair dismissal, in order to be lodged within time, should have been lodged by 2 December 2010. The application was made on 22 February 2011.

[3] General and Window Cleaning Pty Ltd (the Respondent) has objected to Fair Work Australia dealing with the application on the basis that it was not made within the time limit prescribed by the legislation.

[4] Mr Burgess was represented at the hearing for an extension of time by Mr Tullgren of United Voice. 1 The Respondent was represented by Mr Jones.

Applicant’s evidence and submissions

[5] Mr Tullgren made a witness statement that was admitted without objection. The Respondent did not seek to cross examine Mr Tullgren.

[6] Mr Tullgren stated that Mr Burgess had approached United Voice four days after he was dismissed (he was dismissed on Thursday 18 November 2010 2 and contacted the union on Monday 22 November). Some required internal forms were completed by the organiser and provided to Mr Tullgren, the relevant industrial officer. These forms were then returned to the organiser to enable further investigation into the matter.3 This form was not returned to Mr Tullgren.4 It became apparent in February 2011 that an unfair dismissal application had not been lodged. Mr Tullgren lodged the application on behalf of the Applicant the day after he became aware the application had not been made.5

[7] United Voice submits for Mr Burgess that the reason for the delay in lodging the application for relief from unfair dismissal is representative error on the part of United Voice.

[8] United Voice at all times took responsibility and advised the Applicant that it would lodge the unfair dismissal application. 6

[9] United Voice submits that the Applicant is blameless in the delay for filing the application, that the failure to file the application was a clerical error and that United Voice, who regularly files matters in Fair Work Australia, normally does so within the prescribed time limits - that is, that the failure in this instance is not normal for United Voice.

[10] United Voice further argues that, by approaching United Voice and requesting that it file an unfair dismissal application, the Applicant has sought to dispute the dismissal, that there is no prejudice to the employer in granting the extension of time and that there is merit in the application in that the Applicant says…

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: [2011] FWA 2802
Decision Date: 11 MAY 2011

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Burgess brought an application against General and Window Cleaning Pty Ltd regarding an unfair dismissal claim. The applicant, Burgess, alleged that his dismissal was unjust and sought to have the matter heard. The respondent company argued that the application was out of time and, as such, should not be entertained by the court. The core legal issue before the court was whether the application could be considered despite the apparent delay in lodging, which was attributed to the applicant's representative's error. Specifically, the court had to determine if the circumstances warranted an extension of time under the applicable jurisdictional rules.

The court considered the principles of procedural fairness and the need to balance the rights of both parties. It was noted that the delay in filing the application was due to an error by Burgess's representative, which was not attributable to Burgess himself. The court found that while strict compliance with procedural rules is generally necessary, exceptions can be made in cases of representative error, particularly when the delay has not caused any prejudice to the respondent. The court held that the application should not be dismissed outright for untimeliness if the delay was due to circumstances beyond the applicant's control, and no prejudice resulted to the respondent.

Consequently, the court allowed the application and extended the time for filing the unfair dismissal claim. The decision underscored the importance of fairness in procedural matters and the court's discretion to grant extensions in appropriate cases. The respondent's argument that the application should be dismissed for late filing was rejected, and the court permitted the matter to proceed. The final orders included an extension of time for Burgess to lodge his unfair dismissal claim and a directive for the matter to be listed for further proceedings.

Orders