James Handscomb v Barwon Health

[2014] FWC 3808

[2014] FWC 3808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

James Handscomb
v
Barwon Health
(C2014/4533)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 7 JULY 2014

Application to deal with contraventions involving dismissal.

[1] On 20 May 2014 Mr James Handscomb filed an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he was forced to resign in August 2008 because of discrimination.

[2] The respondent replied to the allegations on 3 June 2014 and lodged several jurisdictional objections.

[3] On 3 June 2014 I asked the applicant to respond to the issues raised by the respondent. He provided a response on 6 June 2014.

[4] On 11 June 2014 I asked the parties for any further submissions by 16 June 2014, and advised them that I would determine the matter ‘on the papers’ unless a party objected.

[5] Both the applicant and respondent provided a further submission on 16 June 2014. No objection to determining the matter on the papers was received. The applicant confirmed that his email address was the correct one on 23 June 2014. On 2 July I gave the applicant a further opportunity to put submissions. The applicant did not provide further submissions.

Time of Resignation and Date of Act

[6] The applicant resigned in August 2008, before the relevant section of the Act under which the application was lodged came into force on 1 July 2009. There is no provision for retrospective application of the section. The section is therefore not applicable to the applicant’s resignation, and the application must be dismissed 1. The employer raised this issue in its submissions, but the applicant did not address it.

Extension of Time

[7] Even if the section was applicable to this matter, an application must be lodged within 21 days of a termination, or an extension of time must be sought. I note that initially the time limit for applications was 60 days, and this was changed to 21 days. In either case the applicant is more than five years out of time. The employer raised this issue in its submissions, but the applicant did not address it.

[8] Section 366 of the Fair Work Act 2009 currently 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

(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.’

[9] The phrase ‘exceptional circumstances’ was considered by a Full Bench of the Commission in Nulty v. Blue Star Group 2. I adopt the observations of the Full Bench.

[10] Turning to deal with s.366(2)(a), the applicant put submissions on 6 June and 16 June 2014 but does not provide a satisfactory reason for the very extensive delay. There is no reason for the delay.

[11] In relation to s.366(2)(b), the applicant states that the first complaint he lodged against Barwon Health was approximately two to three weeks ago 3. This means that he took no action to dispute the alleged dismissal. In any event there is no record of any other action taken to challenge his dismissal.

[12] In relation to s.366(2)(c), the respondent claims that to grant an extension of time after such an elapse of time, would be ‘highly prejudicial to the respondent’. This seems likely given that witnesses and records might be difficult to locate.

[13] In relation to s.366(2)(d), this seems neutral. The applicant makes a number of allegations and these are denied.

[14] In relation to s.366(2)(e), there is nothing that distinguishes this matter from other matters, and there is no reason to treat the applicant’s application any differently to other matters that are out of time.

[15] I am not satisfied that there are exceptional reasons to extend time. I refuse to extend time.

[16] An order dismissing the application is contained in PR552809.

DEPUTY PRESIDENT

 1 Fair Work Act 2009, s.2; Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 2, Items 11 and 12

 2 (2011) 203 IR 1 at 13

 3   Submission of 6 June 2014, paragraph 4

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