Jacob William Thomas v Fujitsu Australia Ltd - [2022] FWC 1835

[2022] FWC 1835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jacob William Thomas
v

Fujitsu Australia Ltd

(C2022/2362)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 14 JULY 2022

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

This decision concerns an application by Mr Jacob William Thomas under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

It is uncontested that Mr Thomas’ employment with the Respondent ended on 8 March 2022. The GP Application was lodged on 12 April 2022. The period of 21 days ended at midnight on 29 March 2022 and the GP Application was therefore lodged 12 days out of time. Mr Thomas seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.

On 13 July 2022 I conducted the proceedings by way of determinative conference by Microsoft Teams. Mrs Tracy Thomas, Mr Thomas’ mother, appeared on behalf of Mr Thomas and filed a witness statement. Mr Thomas filed a witness statement and gave evidence. Mr Thomas also filed a witness statement for Mr Christopher Thomas. The Respondent did not require either Mrs Thomas or Mr Christopher Thomas to attend for cross examination.

Ms Asha McDermott, Head of Corporate Law for the Respondent appeared on behalf of the Respondent.

Background

The Respondent is a supplier of air conditioning products in Australia. Mr Thomas was employed by the Respondent in the role of On-site Technician from 25 October 2021 until 8 March 2022. Mr Thomas is 23 years old and was dismissed during his probation period with the Respondent.

On 25 March Mr Thomas lodged an application for an unfair dismissal remedy pursuant to section 394 of the Act (Unfair Dismissal Application). Mrs Thomas assisted Mr Thomas in the preparation of the Unfair Dismissal Application and filed it on his behalf.[1] On 11 April 2022 Mrs Thomas, on behalf of Mr Thomas, discontinued the Unfair Dismissal Application. As already set out, Mr Thomas then lodged the GP Application on 12 April 2022.

Consideration

The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[2]

The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[3] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench…

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 Jacob William Thomas v Fujitsu Australia Ltd

Details

AGLC: Jacob William Thomas v Fujitsu Australia Ltd [2022] FWC 1835
Case: [2022] FWC 1835
Decision Date: 14 JULY 2022

CaseChat Overview and Summary

Jacob William Thomas brought an application under section 365 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a general protections dispute involving his dismissal from Fujitsu Australia Ltd. The application was made 12 days outside of the statutory 21-day period. Thomas sought an extension of time to make the application, which the Respondent opposed. The Deputy President considered the application on 13 July 2022 and dismissed it. The Deputy President found that Thomas had not provided a reasonable or acceptable explanation for the delay in lodging the application. Thomas had submitted that he had used the wrong avenue and had been unwell, but these explanations were rejected. The Deputy President also found that the merits of the application were neutral, as were the factors of prejudice to the employer and fairness to other persons in a like position. The Deputy President concluded that the statutory time limit for bringing an application under section 365 reflects the intention that this right be exercised promptly, and that exceptional circumstances must exist to permit a late application. The Deputy President found that the exceptional circumstances did not exist in Thomas's case and dismissed the application.

Orders