Guy Birchall v Nauru Air Corporation - [2022] FWC 1785

[2022] FWC 1785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Guy Birchall
v

Nauru Air Corporation

(C2022/2312)

DEPUTY PRESIDENT LAKE

BRISBANE, 8 JULY 2022

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time granted.

On 10 April 2022, Mr Guy Birchall (the Applicant) lodged an application with the Fair Work Commission (the Commission/the FWC) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Nauru Air Corporation (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Brisbane. The Applicant’s employment commenced with the Respondent on 29 July 2019 and he was notified by email of his termination on 18 March 2022 at 5.33pm AEST. There is contention as to when the notice took effect.

By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act.

The Respondent submits that the Applicant filed their application out of time and opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.

On 13 June 2022, I convened a hearing by telephone to determine whether the application was lodged in time and if not, to allow the Applicant an additional period within which to lodge his application.

Representation

Both parties sought to be represented. To allow the matter to be dealt with most efficiently – given the legal question of when notification occurred and if an extension should be granted – I was satisfied that the present case is one in which both parties and the Commission would benefit from the assistance of legal representation to allow for the efficient conduct of the case. Accordingly, both parties were granted permission to be represented. Mr Robert Grealy of Australian Law Partners Pty Ltd represented the Applicant, while Ms Annie Smeaton of Cooper Grace Ward represented the Respondent.

The Applicant’s submissions

The Applicant admits he received written notice of his dismissal (Termination Notice) by email on 18 March 2022 at 5.33pm AEST.[1]

The Applicant submits that the Termination Notice did not comply with the requirements of s.117 of the Act as it was not hand-delivered, or left at the Applicant’s last known addressed, or received by pre-paid post at the Applicant’s last known address.[2]

The Applicant’s dismissal could not take effect until he was served with written notice of that dismissal in accordance with the requirements of the Act.[3]

Any written notice received after normal business hours (9am to 5pm) was deemed to be received on the next business day being 21 March 2022.[4]

The Application was filed in time as the Act and the Fair Work Commission Rules…

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 Guy Birchall v Nauru Air Corporation

Details

AGLC: Guy Birchall v Nauru Air Corporation [2022] FWC 1785
Case: [2022] FWC 1785
Decision Date: 8 JULY 2022

CaseChat Overview and Summary

Guy Birchall filed an application with the Fair Work Commission (FWC) to deal with a general protections dispute concerning his dismissal by Nauru Air Corporation. The application was filed beyond the statutory 21-day period, prompting the Respondent to oppose the granting of an extension of time. The central issue before the Deputy President was whether exceptional circumstances existed to warrant an extension of time for the filing of the application. The Applicant contended that his solicitor was responsible for the delay, and that there was no prejudice to the employer. The Respondent argued that the Applicant had not demonstrated any steps to contest the dismissal and that the absence of prejudice was insufficient to grant an extension of time.

In considering whether to grant an extension of time, the Deputy President assessed the application under s.366(2) of the Fair Work Act 2009. The Deputy President found that the reason for the delay, which was attributed to the Applicant's solicitor, constituted an exceptional circumstance. Additionally, the Deputy President determined that the Applicant had not taken any steps to contest the dismissal, and that there was no evidence of prejudice to the employer. The merits of the application and fairness to other persons in a similar position were found to be neutral factors. Ultimately, the Deputy President was satisfied that exceptional circumstances existed to warrant an extension of time for the filing of the application.

The Deputy President granted an extension of time for the Applicant to lodge his application and ordered that the matter proceed by way of a conference at a time and date to be advised.

Orders