Christopher Ross v Australian Postal Corporation - [2024] FWC 1098

[2024] FWC 1098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Christopher Ross

Australian Postal Corporation

(C2024/962)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 26 APRIL 2024

Application to deal with contraventions involving dismissal – extension of time.

Mr Christopher Ross (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with contraventions involving dismissal. Mr Ross contends that his former employer, Australian Postal Corporation trading as Australia Post (the Respondent), contravened sections 340, 343 and 351 of the Fair Work Act (2009).

Mr Ross’ dismissal took effect on 8 January 2024. He filed his application on 16 February 2024. On 27 February 2024, the Respondent filed a Form F8A response to Mr Ross’ general protections application objecting to the application on the basis that it was not filed within 21 days of the dismissal taking effect.

Section 366 of the Act requires that an application made under s.365 must be lodged within 21 days after the dismissal took effect, or within such further period as the Commission allows. Mr Ross’ application was made 18 days after the 21 day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.

Procedural History

On 13 March 2024, the matter proceeded to a Mentions/Directions hearing –jurisdiction only (extension of time). Prior to the commencement of proceedings, Mr Ross sought an adjournment of his application and a leave application, stay order (first stay application). I refused Mr Ross’ application for an adjournment and the first stay application. Directions were issued from my Chambers that same day and the matter was listed for a jurisdictional hearing (extension of time).

Mr Ross subsequently filed an appeal application against the procedural decisions I made on 13 March 2024, 18 March 2024 and 21 March 2024 and amongst other things, sought a stay of the proceedings listed for 9 April 2024. On 28 March 2024, Deputy President Millhouse issued a decision[1] refusing Mr Ross’ first stay application. The procedural history of this general protections Application is set out in detail in the Deputy President’s decision which I do not intend repeat in full here. A summary of the procedural history that followed is set out below.

On 28 March 2024, I amended the Directions to allow Mr Ross a further period of time to file materials in support of his application. On the same day, Mr Ross appealed a decision of Deputy President Millhouse and made a further Application for a stay under s.606 of the Act. On 5 April 2024, Mr Ross’ application to stay (second stay application) the decision of Deputy President Millhouse was refused. [2]

On 1 April 2024, Mr Ross sent an email to my chambers seeking an order to have his matter transferred to the Federal Court of Australia and for the Commission to issue a certificate that “this proceedings be transferred to the Federal Court…

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.

Continue reading Christopher Ross v Australian Postal Corporation

Details

AGLC: Christopher Ross v Australian Postal Corporation [2024] FWC 1098
Case: [2024] FWC 1098
Decision Date: 26 APRIL 2024

CaseChat Overview and Summary

Christopher Ross has applied to the Fair Work Commission under section 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with contraventions involving his dismissal. The Australian Postal Corporation trading as Australia Post has objected to the application on the basis that it was not filed within 21 days of the dismissal taking effect. The Court must determine whether a further period of time to lodge the application should be allowed. The primary issue before the Court was whether the applicant's failure to file the application within 21 days of the dismissal taking effect could be excused under section 366(2) of the Act. The Court found that the applicant had not provided a credible explanation for the entirety of the delay. The applicant had not provided any evidence or made any submission as to the nature of his mental health issues or how they directly or indirectly contributed to the late filing of his application. The Court found that the applicant had taken action to contest his dismissal, but this was not sufficient to outweigh the other considerations. The Court found that the merits of the application did not weigh in favour of granting an extension of time. The Court found that the application was not dismissed because there were not exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). The application is dismissed.

Orders