Ian Jacks v Hindley and Associates Pty Ltd ATF the Hindley Trust T/A Hindley and Associates Pty Ltd - [2018] FWC 7741

[2018] FWC 7741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ian Jacks

Hindley and Associates Pty Ltd ATF the Hindley Trust T/A Hindley and Associates Pty Ltd

(C2018/5747)

DEPUTY PRESIDENT BINET

PERTH, 19 DECEMBER 2018

Application to deal with contraventions involving dismissal – application lodged out of time – objection to application – extension of time granted.

Mr Ian Jacks (Mr Jacks) has lodged an application (Application) pursuant to section 365 of the Fair Work Act 2009 (FW Act) alleging that he was unlawfully dismissed by Hindley and Associates Pty Ltd (Hindley).

Subsection 366(1) of the FW Act provides that an application made pursuant to section 365 of the FW Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal. Subsection 366(2) provides that the Fair Work Commission (FWC) may allow a further period for lodgement in exceptional circumstances.

The Application was lodged out of time and Mr Jacks has sought an extension to the lodgement time limit. Hindley have objected to the FWC granting such an extension. In light of this, the Application was listed for a hearing on 6 December 2018. Directions requiring the filing of materials were issued to the parties on 2 November 2018 (Directions).

The Directions invited the parties to make submissions as to whether the FWC should grant permission pursuant to section 596 of the FW Act for the parties to be represented by a lawyer or paid agent.

Section 596 of the FW Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

Mr Jacks objected to Hindley being granted permission to be represented on the grounds that Hindley were endeavouring to ‘hide behind’ their lawyers rather than discuss his concerns with him, that the granting of leave to be represented would result in the use of legal jargon intended to prevent him pursuing his claim and that Hindley’s legal representatives would not have sufficient instructions in order for the matter…

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.

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Details

AGLC: Ian Jacks v Hindley and Associates Pty Ltd ATF the Hindley Trust T/A Hindley and Associates Pty Ltd [2018] FWC 7741
Case: [2018] FWC 7741
Decision Date: 19 DECEMBER 2018

CaseChat Overview and Summary

Ian Jacks, a former employee, filed an application with the Fair Work Commission to address alleged contraventions connected to his dismissal by Hindley and Associates Pty Ltd. The company, represented by its trustee, opposed the application on the basis that it was lodged outside the statutory time limit. The Fair Work Commission was tasked with determining whether to permit the application despite the delay and if the company's objection should be upheld.

The central legal issue revolved around whether the late filing of the application could be excused under the relevant provisions of the Fair Work Act 2009. The Commission had to weigh the merits of the application against the statutory timelines and consider whether any exceptional circumstances warranted an extension of time. The company argued that the application was irredeemably late and that allowing it would set a poor precedent, while the applicant contended that there were extenuating factors that justified the delay.

In delivering its decision, the Commission acknowledged the general rule that applications for unfair dismissal must be lodged within 21 days of the dismissal. However, it recognised that there are circumstances where an extension of time may be granted if the applicant can demonstrate sufficient cause for the delay. The Commission found that the applicant had provided satisfactory explanations for the late filing, including difficulties in obtaining legal advice and the complexity of the case. As a result, the Commission granted the application for an extension of time and dismissed the company's objection, allowing the application to proceed.

The Commission's final orders included granting an extension of time for the application to be heard and dismissing the company's objection to the late filing. This decision allows the applicant to pursue his claims related to the alleged contraventions of his dismissal, subject to the terms and conditions set by the Commission.

Orders