Gregg Cook v Daryl Page T/A Jelaryl Pty Ltd

[2013] FWC 2197

[2013] FWC 2197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gregg Cook
v
Daryl Page T/A Jelaryl Pty Ltd
(C2013/3056)

COMMISSIONER BISSETT MELBOURNE, 11 APRIL 2013

Section 365 application - general protections involving dismissal - extension of time - application made 17 days outside the statutory period - no objection to extension - acceptable reason for delay - exceptional circumstances exist - extension granted - certificate to be issued

[1] Mr Gregg Cook (the Applicant) has made an application for the Fair Work Commission (the Commission) to deal with a contravention of the general protections provisions of the Fair Work Act 2009 (the Act) involving a dismissal pursuant to s.365 of the Act. Mr Cook has been employed by Daryl Page T/A Jelaryl Pty Ltd.

[2] Mr Cook’s employment with the Respondent ended on 4 January 2013. He made his application to the Commission on 11 February 2013. Whilst the Applicant claims he was dismissed the Respondent says he was a contractor and the contract was terminated.

[3] Section 366 of the Act requires that an application under s.365 be made within 21 days of the date of dismissal although the Commission may allow an extension of that period:

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.”

[4] The Applicant’s application was made 38 days after the end of his employment, therefore 17 days beyond the statutory time period.

[5] The Applicant seeks that I grant an extension to the time for lodging his application. The Respondent doe not object to an extension being granted.

Consideration

[6] Whilst there is no objection by the Respondent to the grant of an extension of time that extension of time can only be granted if the Commission is satisfied that exceptional circumstances exist.

[7] The Applicant submits that he tried for some time to lodge his application but had difficulty navigating how the electronic filing system available for filing applications with the Commission worked. The Applicant sent correspondence to the general Commission email address seeking assistance in lodging the application. It is not clear from the material submitted by the Applicant when he first started to make attempts to file his application.

[8] On balance I am satisfied that the Applicant took reasonable steps to make his application within the time required.

[9] The Applicant took steps to dispute the ending of his employment at the time the termination of employment occurred.

[10] The employer indicates no prejudice to it in granting the extension of time.

[11] The application raises complex issues with respect to employment and engagement of a contractor. The Applicant says he was dismissed from employment and that any contractor arrangement was sham in character. The Respondent says the Applicant willingly entered into the arrangements with the Respondent and that he knew and agreed to the basis of his engagement. I can say nothing of the merits of the case as this would require findings of fact and I do not have the information or evidence in front of me that would enable me to do so.

[12] Nothing was put to me as to the fairness between the applicant and others in a like position.

[13] I have considered all of the material before me and, on balance, find that there are exceptional circumstances such that an extension of time should be granted. This is a finely balanced decision given the lack of definitive material on when the applicant first attempted to file his application. This is countered by the lack of objection for the Respondent to the grant of the extension of time.

Conclusion

[14] An extension of time for the making of the application by the Applicant will be granted until 11 February 2013.

[15] The application has already been subject to conciliation. Accordingly a certificate pursuant to s.369 of the Act will be issued.

COMMISSIONER

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