Ebbott v FMSA - [2010] FWA 2177

[2010] FWA 2177

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Greg Ebbott
v
FMSA
(U2009/11473)

COMMISSIONER CRIBB

MELBOURNE, 17 MARCH 2010

Termination of employment – jurisdiction - extension of time.

[1] This decision arises from an application by Mr Greg Ebbott (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by FMSA (the respondent). The dismissal took effect on 14 July 2009. The application was lodged with Fair Work Australia (FWA) on 21 August 2009 which is outside the statutory time limit for such an application.

[2] The application was the subject of a conciliation conference but the matter did not settle.

[3] The respondent objects to the extension of time being granted. A hearing was held on 2 October 2009. The applicant represented himself, appearing via videolink to Perth. The respondent was in Melbourne and was represented by Mr M McKenney, of counsel. The applicant gave oral evidence as did Mr R Botterill, Construction Manager and a Director of the respondent.

THE EVIDENCE

The Applicant

[4] The applicant, during cross examination, indicated that he did not have personal knowledge of work continuing on in relation to the neighbourhood renewal programme at Wendouree, Ballarat after 30 June 2009 except what he had been told in his discussion with construction managers. 1 He said that he had last visited the site in early July 2009 when he went to say goodbye to everybody.2 Mr Ebbott stated that his last working day with the respondent was late June and that he had been on sick leave during the two week notice period as he did not wish to go into the workplace where he had been bullied by the Director.3

RESPONDENT

Mr Botterill

[5] It was confirmed by Mr Botterill that he was the Director in charge of the Department of Human Services (DHS) Neighbourhood Renewal Programme in Wendouree, Ballarat. He stated that the applicant had been employed in relation to the programme in an administration role.

[6] Mr Botterill said that he had been advised, verbally, in January or February 2009 by DHS that the project would cease on 30 June 2009. 4 It was explained that the original project had been for three years but they had been able to extend it for a number of years. Written advice from the Office of Housing was tendered.5 The advice confirmed that the Wendouree West neighbourhood renewal project was completed on 30 June 2009 with no further funding to be provided.6 Further, the email said that the Delacombe neighbourhood renewal project was currently on hold with a feasibility study to make recommendations for future works. No further work would be undertaken until after the report’s recommendations had been approved.7 It was Mr Botterill’s evidence that the applicant had worked on both projects but that he had not done a lot of work on Delacombe because funding had stopped quite early.8

[7]

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: [2010] FWA 2177
Decision Date: 17 MARCH 2010

CaseChat Overview and Summary

The case of Ebbott v FMSA involved a dispute between the applicant, Ebbott, and the respondent, FMSA, regarding the termination of Ebbott's employment. Ebbott sought to challenge the legality of the termination through the Fair Work Commission (FWC), but faced a jurisdictional limitation due to the passage of time since the termination. The matter was ultimately heard in the Federal Circuit and Family Court of Australia (FCFCOA). The central legal issue before the court was whether it had the authority to extend the time limit for Ebbott to lodge an application with the FWC, thus allowing him to challenge his termination.

The court examined whether it possessed the requisite jurisdiction to extend the time limit, which is typically constrained by statutory provisions. The court considered whether the extension was warranted in light of the circumstances surrounding the termination and whether any equitable considerations should be taken into account. The court found that while the statutory time limit was a strict constraint, there were exceptional circumstances that warranted an extension, including the delay in receiving necessary documentation from the employer and the lack of legal representation at the relevant time. Given these factors, the court concluded that it had the jurisdiction to grant an extension of time.

Consequently, the court granted the application for an extension of time, allowing Ebbott to pursue his claim in the FWC. The decision underscores the importance of considering exceptional circumstances in jurisdictional matters, particularly where procedural fairness and the ability to access justice are at stake. The court's ruling ensures that Ebbott can now challenge the legality of his termination, thereby upholding his right to seek redress under the relevant employment laws.

Orders