Daniel Maddern v Slabtec Pty Ltd - [2022] FWC 2396

[2022] FWC 2396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Daniel Maddern
v

Slabtec Pty Ltd

(C2022/2870)

DEPUTY PRESIDENT LAKE

BRISBANE, 8 SEPTEMBER 2022

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

Mr Daniel Maddern (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Slabtec Pty Ltd (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne on 10 May 2022. The Applicant began his employment on 31 March 2022. The Applicant was dismissed by the Respondent on 6 April 2022.

By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. To be within time, the Applicant should have lodged his application on or before 27 April 2022 and thus was 13 days out of time.

Chronology

On 14 April 2022, the Applicant called the Fair Work Ombudsman (Ombudsman) to make a complaint. Following the telephone call, the Ombudsman sent an email to the Applicant with further information.

On 15 April 2022, the Applicant made a request for an appointment through the Workplace Advice Service.

On 19 April 2022, the Workplace Advice Service confirmed that the Applicant had an appointment with a lawyer at 2.00 pm on 25 April 2022 – which is a national public holiday.

On 21 April 2022, the appointment was cancelled.

On 25 April 2022, the Applicant filed an unfair dismissal application with the Commission.

On 27 April 2022, Coutts Lawyers and Conveyancers attempted to call the Applicant. The Applicant did not answer. At 10.02 am, Coutts Lawyers emailed the Applicant and asked him to return their call. The Commission also made multiple attempts to contact the Applicant on his nominated telephone number. At 11.56 am, a letter was sent to the Applicant advising him that he may not meet the minimum employment period as prescribed by s.394 of the Act. The Commission requested that further information regarding the Applicant’s employment period be provided to the Commission by 11 May 2022.

On 29 April 2022, the Applicant then responded to the email from Coutts Lawyers and proceeded to make an appointment for 4 May 2022.

On 4 May 2022, a lawyer from Coutts Lawyers attempted to call the Applicant five times. The Applicant then returned the lawyer’s call.

On 6 May 2022, the Applicant provided the Commission with a Form F1 requesting to change his unfair dismissal application to a general protections application. This form also contained information as to why his application was late. The Applicant also provided correspondence between himself and the Fair Work Ombudsman.

On 10 May 2022 at 9.10…

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 2396
Decision Date: 8 SEPTEMBER 2022

CaseChat Overview and Summary

The Applicant, Daniel Maddern, sought to bring a general protections dispute against Slabtec Pty Ltd, his former employer, before the Fair Work Commission (the Commission). The Applicant was dismissed by the Respondent on 6 April 2022 and filed his application on 10 May 2022, 13 days outside the statutory 21-day time limit. The Respondent opposes the granting of an extension of time, and the Deputy President was required to determine whether exceptional circumstances existed to allow a further period for the application to be made. The primary legal issue was whether the Commission should allow a further period under s.366(2) of the Fair Work Act 2009 for the Applicant’s application to be made.

The Deputy President considered each of the matters set out in s.366(2) of the Act. Firstly, the reason for the delay was not exceptional. The Applicant was allegedly misled by the Fair Work Ombudsman, however, upon examination of the email provided, the Ombudsman directed the Applicant to make a general protections application. If the Applicant followed this link, he would have filed the correct application and been within time. The second matter, action taken to dispute the dismissal, did not weigh in favour of an extension of time, as the Applicant did not dispute his dismissal generally with the Respondent. The third matter, prejudice to the employer, was neutral as the Respondent made no submission in relation to this factor and presented no evidence of any prejudice. The fourth matter, the merits of the application, was also neutral as the Commission should not embark on a detailed consideration of the substantive case at this stage. Lastly, fairness as between the Applicant and other persons in a like position was neutral as the parties did not draw to the Deputy President’s attention any relevant persons or cases that would be relevant in relation to the question of fairness. Having regard to all the matters that the Deputy President was required to take into account under s.366(2) of the Act, the Deputy President was not satisfied that exceptional circumstances existed in this matter.

Accordingly, the Deputy President dismissed the application.

Orders