DECISION

Fair Work Act 2009
s.365—General protections

Darren Cook
v
Patterson Building Group Pty Ltd
(C2019/7174)

COMMISSIONER YILMAZ

MELBOURNE, 8 MAY 2020

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied – application dismissed.

[1] On 22 November 2019, Mr Darren Cook lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Cook was employed as a project manager by Patterson Building Group Pty Ltd (PBG) on 20 August 2018, until his termination of employment on 2 October 2019.

[2] On 19 October 2019, Mr Cook filed an unfair dismissal application pursuant to s.394 against PBG. PBG objected to the application on the grounds that the applicant was an award/ agreement free employee and his salary exceeded the high-income threshold, therefore he was excluded from the protection of the unfair dismissal jurisdiction. Mr Cook obtained legal advice on 21 November 2019, which led to the withdrawal of the unfair dismissal application and lodgement of the general protections matter. The unfair dismissal application was lodged within the statutory time frame of 21 days, but the general protections application, which is currently before me, was not.

[3] Mr Cook alleges his termination of employment is an adverse action stemming from health and safety issues he raised in August 2019 in relation to 5 projects that he managed.

[4] PBG opposes the general protection application, submits that the termination of employment is not in contravention of the general protections provisions of the Act, and further objects to the extension of time for the application.

[5] Both parties were granted leave for legal representation.

[6] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 30 days after the 21-day statutory time limit.

Applicant’s submissions

[7] Mr Cook submits he has worked in the building industry in the position of senior project manager or construction manager since 2001 and has a well-regarded reputation 1.

[8] Mr Cook submits that he attended monthly meetings with the executive team and the board of directors and received feedback that he was performing well until July 2019 2. In the two months prior to his termination of employment, Mr Cook submits his role became more difficult with:

• Several projects undertaken without the required site management resources 3

• His unanswered requests for resources in his June and July reports 4

• His workload becoming excessive and dangerous to himself during July-September 5

[9] Mr Cook submits he raised the health and safety issues on 15 August 2019 with the construction manager and then again to both the construction manager and managing director on 16 August 2019 6. He submits he advised PBG…

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 Darren Cook v Patterson Building Group Pty Ltd

Details

AGLC: Darren Cook v Patterson Building Group Pty Ltd [2020] FWC 2407
Case: [2020] FWC 2407
Decision Date: 8 MAY 2020

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Darren Cook, sought to address a general protections dispute involving his dismissal from Patterson Building Group Pty Ltd. The application to deal with the dispute was made outside the prescribed 21 days, raising issues regarding the timeliness of the application and the availability of an extension under exceptional circumstances. The Commission was tasked with determining whether the application should be allowed despite the delay and if there were exceptional circumstances that warranted an extension of time.

The legal issues before the Commission centred on the strict time limits for filing applications and the criteria for determining exceptional circumstances that could justify an extension. The Commission had to assess whether the applicant's delay was excusable and whether it could be attributed to factors beyond his control. Additionally, the Commission considered whether the delay had caused any prejudice to the respondent.

In delivering its decision, the Commission held that the application was made well beyond the 21-day period and that the applicant had not demonstrated exceptional circumstances that would warrant an extension. The Commission found that the applicant's delay was not excusable, and there was no evidence to suggest that the delay was caused by factors beyond his control. Consequently, the Commission denied the application for an extension of time and dismissed the application to deal with the general protections dispute.

Orders