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Fenton-Jones v Haidar

Fenton-Jones v Haidar

Case [2019] FCCA 3251 15 November 2019

Statutory Construction

Employment Law

Civil Procedure

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FENTON-JONES v HAIDAR

[2019] FCCA 3251

Catchwords:
INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application for leave to substitute employer against whom applicant proposes to claim dismissed her in contravention of s.340(1), s.343, and s.351 of the Fair Work Act2009 (Cth) (FW Act) in circumstances where the applicant had made such claims against a person who was not her employer – application made more than 14 days after the Fair Work Commission (FWC) issued a certificate under s.368(3)(a) of the FW Act in relation to an application the applicant made to the FWC to deal with the dispute with the employer – whether in those circumstances applying to substitute the employer as a respondent constitutes an application pursuant to s.370(a)(ii) of the FW Act for an extension of time within which to make a general protections court application against the employer – whether applicant has reasonable explanation for delay – whether applicant has a meritorious case if extension granted – whether otherwise appropriate to grant extension – extension refused and application to substitute employer as respondent dismissed – application brought against person admitted not to be the employer dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340(1), 343, 351, 360, 361, 365, 368, 370, 545

Federal Circuit Court Rules 2001 (Cth), r.7.01

Cases cited:

Atkinson v Killarney Properties Pty Ltd [2016] FCCA 3233

Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

Esso Australia Pty Ltd v Australian Workers’ Union [2016] FCAFC 72; (2016) 258 IR 396

Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456

Applicant:

BETH FENTON-JONES

Respondent:

GEORGE HAIDAR

File Number:

SYG 495 of 2019

Judgment of:

Judge Manousaridis

Hearing date:

30 April 2019

Date of Last Submission:

30 April 2019

Delivered at:

Sydney

Delivered on:

15 November 2019

REPRESENTATION

Applicant in person

Solicitors for the Respondent:

Mr M Dunne of Hospitality Legal Pty Ltd

ORDERS

The application in a case filed on 7 March 2019 to substitute United Gaming & Leisure Hotel Group Pty Ltd as the respondent is dismissed.
The application against the respondent Mr George Haidar is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 495 of 2019

BETH FENTON-JONES

Applicant

And

GEORGE HAIDAR

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Ms Fenton-Jones, commenced a proceeding in this Court claiming relief under the Fair Work Act 2009 (Cth) (FW Act). She claims that, contrary to s.340(1), s.343, and s.351 of that Act, her employer took adverse action against her by terminating…

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 Fenton-Jones v Haidar

Details

AGLC: Fenton-Jones v Haidar [2019] FCCA 3251
Case: [2019] FCCA 3251
Decision Date: 15 November 2019

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Manousaridis considered an application by Ms Fenton-Jones (the applicant) for leave to substitute a new respondent, her employer, in proceedings alleging contraventions of sections 340(1), 343, and 351 of the *Fair Work Act 2009* (Cth). These claims had initially been brought against an individual who was not Ms Fenton-Jones's employer. The application to substitute the employer was made more than 14 days after the Fair Work Commission issued a certificate under section 368(3)(a) of the *Fair Work Act* concerning a prior application to deal with the dispute.

The central legal issues before the court were whether the application to substitute the employer constituted an application for an extension of time under section 370(a)(ii) of the *Fair Work Act* to make a general protections court application against the employer. Further, the court had to determine if the applicant had provided a reasonable explanation for the delay in bringing the application against the employer, whether she had a meritorious case if an extension were granted, and if it was otherwise appropriate to grant such an extension.

Judge Manousaridis reasoned that the application to substitute the employer was indeed an application for an extension of time. The court found that the applicant had not provided a reasonable explanation for the significant delay in bringing the claim against her employer. Consequently, the court determined that it was not appropriate to grant an extension of time.

Accordingly, the application to substitute the employer as a respondent was dismissed, and the original application brought against the individual who admitted not to be the employer was also dismissed.

Orders