Glenys McKean v Busways Group Pty Ltd Summary

[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

(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

CaseChat Overview and Summary

The case of Glenys McKean against Busways Group Pty Ltd involved an application by the respondent, Busways Group, to address various alleged contraventions of the Australian Consumer Law (ACL) under section 87B. The respondent sought to have the matter referred to the Australian Competition and Consumer Commission (ACCC) to investigate these alleged contraventions. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Bromberg.

The primary legal issue the court had to decide was whether the respondent had complied with the requirements of section 87B of the ACL to give notice to the applicant, McKean, before applying to the court for an order. Section 87B outlines the process for dealing with contraventions of the ACL, and it mandates that a respondent must provide the applicant with written notice of their intention to make an application to the court. The court needed to determine whether Busways Group had properly served this notice on McKean and whether this was a prerequisite to proceeding with their application.

Justice Bromberg examined the evidence presented by both parties and found that Busways Group had not provided McKean with the required notice before making their application to the court. This failure to comply with the procedural requirement under section 87B was deemed significant. Consequently, the court ruled that Busways Group's application was not valid due to this procedural oversight. As a result, the application was dismissed, and the court did not proceed to consider the merits of the alleged contraventions.

In conclusion, the Federal Circuit Court determined that Busways Group's application to have the matter referred to the ACCC for investigation was dismissed on procedural grounds. The court held that the respondent's failure to comply with the notice requirement under section 87B of the ACL invalidated their application.

Glenys McKean v Busways Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established