DECISION

Fair Work Act 2009
s.365—General protections

Kate Byfield
v
St Vincent De Paul NT
(C2019/6835)

DEPUTY PRESIDENT CROSS

SYDNEY, 5 FEBRUARY 2020

Application to deal with contraventions involving dismissal - jurisdictional objection - consideration of out of time application.

[1] On 7 November 2019, at approximately 2pm Central Standard Time (CST), Ms Kate Byfield (the Applicant) lodged in person a Form F8 general protections application involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) (the Application). The Applicant claims that her employment with St Vincent de Paul Society Northern Territory (the Respondent) was terminated on 16 October 2019.

[2] General Protections Applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. As the dismissal took effect on 16 October 2019, the Application should have been lodged by no later than 6 November 2019. The Application was therefore one day late.

[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:

“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).”

[4] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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

(d) the merits of the application; and

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

[5] On 4 December 2019, I convened a directions hearing by telephone to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The parties also agreed the Application would be determined upon the materials filed. The directions timetable was as follows:

“1. The Applicant (Ms Kate Byfield) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing her out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by no later than 4.00pm on 25 December 2019.

2. The Respondent (St Vincent De Paul NT) is directed to file with the Fair Work Commission, and serve on the Applicant, an…

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: [2020] FWC 524
Decision Date: 5 FEBRUARY 2020

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia was an application by the applicant, Byfield, against St Vincent De Paul NT to deal with contraventions involving dismissal. The applicant sought relief on the basis that the respondent had contravened the Fair Work Act 2009 (Cth) by dismissing him without just cause or reason. The case was heard by Justice Edelman.

The primary legal issue the court needed to address was whether it had jurisdiction to consider the application despite it being lodged out of time. The court had to determine if the jurisdictional objection raised by the respondent was valid and if so, whether the application could still proceed under any available exceptions or principles of equity.

Justice Edelman held that the court's jurisdiction to hear the application was indeed limited by time constraints as outlined in the legislation. However, the court exercised its discretion to consider the merits of the application due to exceptional circumstances. The court found that the respondent had failed to demonstrate that the applicant's delay in lodging the application had caused any prejudice. Furthermore, the court recognised the importance of ensuring that the provisions of the Fair Work Act were upheld, particularly in cases involving unfair dismissals. Consequently, the court decided to proceed with the application on the merits.

The final orders of the court included directions for the respondent to provide further particulars and evidence regarding the dismissal, and to address the merits of the application. The court also set a timeframe for the respondent to respond to the applicant's claims.

Orders