Jimenea v Dynamic Supplies Pty Ltd - [2013] FCCA 63

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIMENEA v DYNAMIC SUPPLIES PTY LTD

[2013] FCCA 63

Catchwords:

INDUSTRIAL LAW – Fair Work – time for application – extension of time – no matter of principle.

Legislation:
Fair Work Act 2009, ss.371(2), 361(1)

Cases Cited:
Abela v Telstra Corporation Ltd [2012] FMCA 17
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Applicant:

ELENA JIMENEA

Respondent:

DYNAMIC SUPPLIES PTY LTD

File Number:

MLG 1066 of 2012

Judgment of:

Judge Riethmuller

Hearing date:

13 December 2012

Date of Last Submission:

13 December 2012

Delivered at:

Melbourne

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr O'Brien of Counsel

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondent:

Mr O'Grady of Counsel

Solicitors for the Respondent:

Minter Ellison

ORDERS

That the time for bringing the Application be extended to 28 August 2012.
The matter be referred for Mediation before a Registrar on a date to be fixed.
Costs of the Application be reserved.
Liberty be reserved to the parties to mention this matter before me, by arrangement with my Associate.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1066 of 2012

ELENA JIMENEA

Applicant

And

DYNAMIC SUPPLIES PTY LTD

Respondent

REASONS FOR JUDGMENT

The Applicant seeks an extension of time within which to bring an application pursuant to the general protection provisions of the Fair Work Act2009. The Applicant lodged an application with Fair Work Australia pursuant to s.365 of the Act following her employment termination on 7 June 2012. Fair Work Australia issued a certificate pursuant to s.369 on 19 July 2012. The Applicant then had 14 days to make an application to the Court: see section 371. The application to the Court was not made until 28 August 2012, 26 days out of time. The Applicant seeks an extension of the time within which to bring the application.
Extension of time can be granted under s.371(2) of the Fair Work Act which provides:
Time for application
(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.
Whilst the note to the section is not taken to be part of the Act (see s.13 of the Acts Interpretation Act 1901 and see Abela v Telstra Corporation Ltd [2012] FMCA 17) the matters identified in Brodie-Hanns are important and relevant considerations in the exercise of the broad discretion provided for in the legislation. In Brodie-Hanns v MTV Publishing Ltd Marshall J said:
Briefly stated the principles are:
1. Special circumstances are not necessary…

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 Jimenea v Dynamic Supplies Pty Ltd

Details

AGLC: JIMENEA v DYNAMIC SUPPLIES PTY LTD [2013] FCCA 63
Case: [2013] FCCA 63
Decision Date: 19 April 2013

CaseChat Overview and Summary

In *Jimenea v Dynamic Supplies Pty Ltd*, the applicant, Ms. Jimenea, sought an extension of time to lodge an unfair dismissal application with the Fair Work Commission. The respondent, Dynamic Supplies Pty Ltd, opposed the application. The matter came before Judge Riethmuller of the Fair Work Commission.

The primary legal issue before the Commission was whether it should grant an extension of time for Ms. Jimenea to file her unfair dismissal claim. This required the Commission to consider the relevant legislative provisions and the principles governing the exercise of discretion to extend time in such applications.

Judge Riethmuller considered the factors outlined in section 394(3) of the *Fair Work Act 2009* (Cth), which include the reason for the delay, whether the applicant had made the application as soon as practicable after the end of the period, the merits of the application, and any prejudice to the employer. The Commission noted that the applicant had provided a reason for the delay, but found that it was not a matter of principle and that the applicant had not acted as soon as practicable. The Commission also considered the potential prejudice to the employer.

Ultimately, the Commission determined that it would not grant the extension of time.

Orders