Dr Maritess Eguia v CPB Contractors Pty Ltd

[2020] FWC 4394

[2020] FWC 4394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Dr Maritess Eguia
v
CPB Contractors Pty Ltd
(C2020/5142)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 25 AUGUST 2020

Application to deal with an unlawful termination dispute.

[1] On 1 July 2020, Dr Maritess Eguia (Applicant) applied pursuant to s.773 of the Fair Work Act 2009 (Act) for the Commission to deal with an unlawful termination dispute. The Respondent is CPB Contractors Pty Ltd.

[2] Section 723 of the Act provides:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

[3] A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to an alleged contravention of Part 3-1 of the FW Act. 1 Applications under Division 2 of Part 4-1 are able to be made by national system employees with respect to alleged conduct by national system employers. There is little doubt that the Respondent is a trading corporation, and so a national system employer.2 The Applicant was therefore a national system employee.3

[4] Indeed, the Applicant has previously made an application to the Commission pursuant to s.365 of the Act. 4 On 19 June 2020, the Commission issued a certificate under s.368 of the Act in relation to that application.

[5] On 2 July 2020, after attempting unsuccessfully to contact the Applicant by telephone, a staff member of the Commission wrote to Dr Eguia referring to s.723 of the Act and advising that the Applicant may be entitled to make a general protections court application.

[6] On 9 July 2020, a staff member of the Commission again attempted unsuccessfully to contact the Applicant by telephone.

[7] On 14 July 2020, my Associate attempted unsuccessfully to contact the Applicant by telephone to discuss the issue mentioned above.

[8] On 23 July 2020, after a further unsuccessful attempt to contact the Applicant by telephone and in the ongoing absence of any response from Dr Eguia, my Associate wrote to the Applicant indicating that it appears on the face of the application that the Commission cannot deal with the dispute under s.773 of the Act and requesting a response by no later than 5.00pm on Thursday, 30 July 2020. It was made plain that if no response was provided the application would likely be dismissed.

[9] At the time of this decision, the Applicant has not responded to the email of 23 July 2020 and has taken no measures to press the application. Consequently, and as foreshadowed in the correspondence to Dr Eguia on 23 July 2020, I have decided to dismiss the application pursuant to s.587 of the Act.

[10] Section 587 of the Act relevantly states:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

...”

[11] Based on the above, I am satisfied that the Applicant was entitled to make a general protections court application in relation to the conduct alleged in the application. The application is thus not made in accordance with the Act.

[12] There is an alternative basis for dismissing the application. According to the answer at 2.2 of the Form F9, the Applicant’s employment was terminated by the Respondent with effect from 25 September 2019.

[13] Section 774(1) of the Act requires that an application made under s.773 must be made within 21 days after the employment was terminated, or within such further period as the Commission allows under s.774(2). The application was plainly lodged after the time limit prescribed in s.774(1) of the Act had elapsed.

[14] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Section 774(2) requires that, in considering whether to grant an extension of time, the Commission must take into account a number of indicia including, inter alia, the reason for the delay.

[15] At 2.3 of the Form F9, the Applicant raises as a reason for the delay confusion and shock caused by the dismissal. The email that accompanied the application further hints at representative error as a reason for the delay. I am not satisfied, based on the material filed to date, that the reasons identified constitute an acceptable explanation for the lengthy delay. This is a matter that weighs heavily against the Applicant in assessing whether there are exceptional circumstances. In the circumstances, I am unable to reach the conclusion that exceptional circumstances exist. Accordingly, I would refuse the application and dismiss it.

[16] Although the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution, 5 the numerous attempts made to contact the Applicant to discuss the application and the issue mentioned above have amounted to naught. The Applicant has failed to engage with the application. In circumstances where Dr Eguia has been notified of a deficiency with the application and has been invited to remedy this deficiency, but has failed to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

Orders

[17] The Application in C2020/5142 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721977>

 1 Fair Work Act 2009, s.368(4)

 2   Ibid, s.14

 3   Ibid, s.13

 4   C2019/6314

 5   General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 at 128-9