DECISION

Fair Work Act 2009
s.365—General protections

Joshua Bradley
v
JBAN Pty Ltd
(C2018/5040)

COMMISSIONER WILSON

MELBOURNE, 19 OCTOBER 2018

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.

[1] This matter concerns an application made by Joshua Bradley for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Bradley was first employed by the Respondent, JBAN Pty Ltd (JBAN), on or around 9 October 2017, and his application relates to the termination of his employment by JBAN which operates two “Oporto” franchises on Melbourne’s Peninsula Link freeway. Mr Bradley’s application was received by the Commission on 27 August 2018.

[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. My finding below is that Mr Bradley was dismissed on 3 August 2018. Accordingly, his application is out of time by three days.

[3] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.2

[4] In this decision, I have considered whether an extension of time should be granted to Mr Bradley for the making of his application and, for the reasons set out below, I am not satisfied that a further period should be allowed.

BACKGROUND

[5] The Applicant, Joshua Bradley, was represented and assisted in these proceedings by his father, Craig Bradley. JBAN was represented by its owner and Director, Barton Smith.

[6] Mr Bradley was employed by JBAN at the Oporto Store on the Peninsula Link at Baxter, Victoria on or around 9 October 2017. His employment was on a part-time basis with him working up to three to four shifts per week. The way the franchise operated was apparently that employees who were required for work would be informed of their rosters in advance. That information was provided to them through an email generated by a system operated by the franchise. Employees were expected to endeavour to themselves arrange an alternative employee in the event that they were unable to attend for a rostered shift for some reason.

[7] Mr Bradley reports “having issues with his employment in July” at around the same time that he had commenced training for a new supervisory position.

[8]

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

Case: [2018] FWC 6363
Decision Date: 19 OCTOBER 2018

CaseChat Overview and Summary

The matter of Joshua Bradley v Jban Pty Ltd involved an application for unfair dismissal remedy by the applicant, Joshua Bradley, against the respondent, Jban Pty Ltd. The Federal Court of Australia was tasked with determining whether Bradley's application for unfair dismissal remedy should be considered despite the absence of exceptional circumstances that warranted an extension of time. Bradley sought relief for an unfair dismissal, arguing that his case should be processed despite missing the statutory time limit for filing the application.

The primary legal issue that the court needed to address was whether the applicant's failure to file the application within the statutory time limit could be excused due to exceptional circumstances. The court also had to consider the broader implications of allowing extensions of time in cases where the applicant had not demonstrated any exceptional circumstances that could justify the delay. The court examined the principles of procedural fairness and the strict adherence to statutory time limits as set out in the Fair Work Act 2009.

The Federal Court of Australia held that the applicant had not demonstrated any exceptional circumstances that would warrant an extension of time. The court emphasised the importance of adhering to statutory time limits for filing applications to ensure the orderly administration of justice. It noted that the absence of exceptional circumstances meant that the application was not eligible for an extension. Consequently, the court dismissed the application for unfair dismissal remedy due to the failure to meet the statutory time limit. The court's decision underscored the necessity for strict compliance with procedural requirements and highlighted the importance of timely filings in employment law matters.

Orders