DECISION

Fair Work Act 2009
s.365—General protections

Kellie Longbottom
v
Oolong Aboriginal Corporation
(C2017/2540)

COMMISSIONER MCKINNON

MELBOURNE, 31 OCTOBER 2017

Application to amend form under section 586.

[1] Ms Kellie Longbottom (Ms Longbottom) made an application to the Fair Work Commission on 12 May 2017 under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging a breach of the general protections involving dismissal.

[2] An issue arose during conciliation of the matter on 11 July 2017 about whether the application made by Ms Longbottom was an unfair dismissal or general protections application.

[3] The question is whether in substance, the application made by Ms Longbottom was an unfair dismissal application, and if so, whether the Form F8A should be substituted with a Form F2 in this matter under section 586 of the Act.

[4] The significance of the dispute is twofold:

a. The Commission has jurisdiction to determine unfair dismissal applications but unless the parties agree otherwise, only the Courts have jurisdiction to determine general protections matters.

b. Ms Longbottom is now out of time to make an unfair dismissal application. If her current claim is withdrawn and an unfair dismissal application made, a grant of additional time under section 394 of the Act will be required.

Relevant facts

[5] The relevant agreed or uncontested facts are these:

1. Ms Longbottom’s employment was terminated by Oolong Aboriginal Corporation (Ooolong) on 10 May 2017.

2. On the evening of 10 May 2017, Ms Longbottom sent an email to SafeWork NSW advising of the termination and seeking guidance. The email included the words “I want to application for unfair dismissal.”

3. On 11 May 2017, SafeWork NSW sent Ms Longbottom an email including links to information on unfair dismissal and access to legal advice and providing guidance on workers compensation entitlements and injury management plan obligations. 1

4. From 11 May 2017 to 12 May 2017, Ms Longbottom undertook research on the Commission’s website. 2

a. On 11 May 2017, Ms Longbottom took the “unfair dismissal eligibility quiz” on the Commission’s “unfair dismissal page”. The quiz confirmed that she was eligible to apply for unfair dismissal. She completed the Form F2 and printed it off.

b. Ms Longbottom resumed her research on the Commission’s website later that evening “through to approximately mid day the next day”. According to Ms Longbottom, she did not sleep and stayed up all night.

5. At 12.18pm on 12 May 2017, Ms Longbottom lodged a Form F8A general protections application involving dismissal in the Commission. The covering email to the Commission said “I have attached a copy of my unfair dismissal application.” 3

6. On 23 May 2017, Oolong filed its response to the application. 4

7. On 22 June 2017, Ms Longbottom sent an email to the Commission asking for assistance to find the forms for her lawyer to fill out as her representative. The email included the sentence “I have a hearing on 11^th July for…

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: [2017] FWC 5678
Decision Date: 31 OCTOBER 2017

CaseChat Overview and Summary

The Federal Court heard an application by Kellie Longbottom against Oolong Aboriginal Corporation. The applicant sought an amendment to a form under section 586 of a relevant statute, as the form contained errors that could potentially prejudice her case. The application was brought before the court to determine whether the form could be amended to rectify the errors.

The legal issue before the court was whether the applicant was entitled to amend the form under the specified section. The court had to consider the provisions of the relevant statute, including any precedents or guidelines that might inform the interpretation and application of section 586. Additionally, the court needed to balance the applicant's right to have her case fairly presented against the need to maintain the integrity of the legal process.

The court examined the statutory language and relevant case law to determine the scope of permissible amendments under section 586. It considered whether the errors in the form were significant enough to warrant an amendment and whether such an amendment would unduly prejudice the respondent. After a thorough analysis, the court found that the applicant had a valid basis for seeking an amendment and that the errors could be rectified without causing undue prejudice to the respondent. The court therefore granted the application, allowing the form to be amended to correct the identified errors. This decision ensures that the applicant's case can be presented accurately and fairly, while also upholding the principles of procedural fairness and justice.

Orders