Glenys McKean v Busways Group Pty Ltd

[2014] FWC 1306

[2014] FWC 1306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Glenys McKean
v
Busways Group Pty Ltd
(C2013/7742)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 20 FEBRUARY 2014

Application to deal with other contraventions dispute.

[1] On 16 December 2013, Ms Glenys McKean (the Applicant) made an application for the Commission to deal with a General Protections dispute pursuant to s.365 of the Fair Work 2009 Act (the Act). The application was incomplete. Following amendment, the application was accepted by the Fair Work Commission on 16 January 2014.

[2] The Applicant commenced employment with Busways Group Pty Ltd (the Respondent) on 7 October and her dismissal took effect on 6 November 2013.

[3] The Respondent submits that there were no contraventions of any of the general protections provisions as alleged by the Applicant. The Respondent further submits that the application is out of time.

[4] Section 366 provides

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] The Applicant had also lodged an unfair dismissal application on 16 December 2013. This application was dismissed by Deputy President Gooley in a decision on 14 February 2014 [2014] FWC 1123 because the Applicant did not fulfil the minimum engagement period under s.383.

[6] This application is at a minimum 2½ weeks out of time. The unfair dismissal application was similarly out of time.

[7] I cannot find any exceptional circumstances which would justify an extension of time being granted pursuant to s.366(2).

[8] Accordingly, the application is dismissed pursuant to s.587(1) of the Act. An order (PR548037) to this effect will accompany this decision.

DEPUTY PRESIDENT

Appearances:

G. McKean Applicant self represented.

J. Ruddell, solicitor with S. Cummins for the Respondent.

Conference details:

2014

Sydney:

February 19.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR548034>