Gaetan Allain v PDMCJ Pty Ltd - [2024] FWC 1560

[2024] FWC 1560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Gaetan Allain
v

PDMCJ Pty Ltd

(C2024/1950)

COMMISSIONER CRAWFORD

SYDNEY, 17 JUNE 2024

General protections dismissal dispute - application filed out of time – no exceptional circumstances – application dismissed.

BACKGROUND

Gaetan Allain has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Allain’s allegations that he was dismissed from his employment with PDMCJ Pty Ltd (PDMCJ) in contravention of Part 3-1 of the FW Act.

Mr Allain commenced employment with PDMCJ on 12 January 2024. PDMCJ provides arborist services using a trading name of French Lumberjack. Mr Allain was dismissed by PDMCJ on 27 February 2024.

Mr Allain filed a Form F8 general protections application on 26 March 2024.

PDMCJ filed a Form F8A employer response on 22 April 2024. PDMCJ has objected to Mr Allain’s general protections application on the ground that the application was filed out of time.

I issued directions for the filing of material in relation to whether I should grant an extension of time and listed the matter for hearing via video on 21 May 2024.

Mr Allain did not file any material in accordance with the directions. Mr Allain did not attend the hearing on 21 May 2024. Misty Kelly attended the hearing on 21 May 2024 on behalf of PDMCJ. Given Mr Allain’s non-attendance at the hearing and failure to file material in accordance with the directions, I indicated to Ms Kelly that I intended to determine the matter in Mr Allain’s absence on the filed material. However, before that process concluded, Mr Allain returned a call from my chambers and indicated he was not aware of the hearing. Mr Allain stated he was at work and unable to join the hearing. Mr Allain had difficulty understanding what a “hearing” means during a phone call with my Associate and requested assistance from a French interpreter in his application.

Given the circumstances, I indicated to Ms Kelly that I thought it was necessary to list a further hearing to give Mr Allain an opportunity to explain why he should be granted an extension of time. That further hearing was listed for 12 June 2024 via video.

Mr Allain represented himself at the hearing on 12 June 2024 with assistance from a French interpreter. Ms Kelly represented PDMCJ.

MATERIAL FILED

Mr Allain

Mr Allain relied on the following material in support of the granting of an extension of time for the filing of his application:

· Mr Allain’s Form F8 application. The application provides the following explanation regarding why it was not made within 21 days of the dismissal taking effect:

“I simply did not know about the Australian legislation for employees. As I am a foreigner on a working holiday visa, I was not familiar with what to do. The last…

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.

Keep reading for free

Create a free CaseChat account to read Gaetan Allain v PDMCJ Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 1560
Decision Date: 17 JUNE 2024

CaseChat Overview and Summary

Gaetan Allain has filed an application with the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009 (Cth) (FW Act) to address a dispute arising from his dismissal by PDMCJ Pty Ltd. Mr Allain claims his dismissal was contrary to Part 3-1 of the FW Act. PDMCJ argues that Mr Allain's application was filed out of time, and therefore, should be dismissed.

The primary legal issue before the Commission was whether the application was made within the required time frame under section 366(1) of the FW Act, or whether the Commission should allow a further period for the application to be made due to exceptional circumstances under section 366(2). The Commission considered various factors, including the reason for the delay, any action taken by Mr Allain to dispute the dismissal, prejudice to PDMCJ, the merits of the application, and fairness as between Mr Allain and other persons in a similar position.

The Commission found that Mr Allain did not provide a satisfactory explanation for the delay in filing his application, and he had taken no action to dispute the dismissal prior to filing the application. While the merits of the application were considered neutral, the Commission concluded that there were no exceptional circumstances warranting an extension of time. As a result, the application was dismissed.

The Commission dismissed the application and did not grant an extension of time for Mr Allain to file his general protections application.

Orders