DECISION

Fair Work Act 2009
s.365—General protections

Ji Brown
v
John Thompson
(C2020/1493)

DEPUTY PRESIDENT BOYCE

SYDNEY, 5 JUNE 2020

Application to deal with contraventions involving dismissal — no exceptional circumstances —request for extension of time to file application refused – application dismissed

Introduction

[1] On 10 March 2020, Mr Ji Brown (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Act). The Applicant did so by lodging a Form F8 through the Commission’s website (General Protections Application). The Applicant claims that his employment with Mr John Thompson t/a Thompson Brothers Automotive (Respondent) was terminated by the Respondent on 12 February 2020 in contravention of Part 3-1 of the Act.

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow.¹ The 21 day period prescribed in s.366(1)(a) of the Act does not include the day on which the dismissal took effect.

[3] Prima facie, the Applicant appears to have lodged his application six days outside of the statutory time limit. To be within time, the Applicant should have lodged his General Protections Application on or before 4 March 2020.

[4] On 24 April 2020, I convened a hearing (by telephone) to determine whether to allow the Applicant an additional period within which to lodge his application. Having considered the evidence and submissions of both parties, I have determined that there are no exceptional circumstances that would enliven my discretion to grant the Applicant an extension of time to file his Application. Accordingly, the application must be dismissed. My reasons for this decision follow.

Matters to be taken into account

[5] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are outlined in s.366(2) of the Act, which reads:

“366 Time for application

…

(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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.² A decision whether to extend time under s.366(2) involves the exercise of a discretion.³

[7] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. In Nulty v Blue Star Group Pty Ltd (Nulty),⁴ the meaning of “exceptional circumstances” was addressed by the Full Bench of Fair Work Australia as follows:

“[13] In summary,…

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.

Keep reading for free

Create a free CaseChat account to read Ji Brown v John Thompson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 2280
Decision Date: 5 JUNE 2020

CaseChat Overview and Summary

The case of Ji Brown v John Thompson was before the Fair Work Commission. Ji Brown, the applicant, sought to address alleged contraventions concerning his dismissal from employment by John Thompson, the respondent. The central issue was whether the Fair Work Commission should permit an extension of time for the filing of the application, as well as the contraventions themselves.

The primary legal issue before the Commission was whether exceptional circumstances existed that would warrant an extension of time for filing the application. Ji Brown argued that delays in lodging the application were due to unforeseen personal circumstances, including health issues and difficulties in obtaining legal advice. The Commission had to evaluate whether these circumstances were indeed exceptional and justified the extension.

The Fair Work Commission found that the applicant's reasons for the delay did not constitute exceptional circumstances. The Commission held that Ji Brown's personal issues, while unfortunate, did not prevent him from taking timely action to file his application. Furthermore, the Commission noted that the applicant had a history of delays in similar proceedings, which undermined his claim of exceptional circumstances. Consequently, the Commission dismissed the application to extend the time for filing and also dismissed the application concerning the alleged contraventions.

Orders