Mann v S and PLS Pty Ltd - [2020] FCCA 636

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANN v S & PLS PTY LTD & ORS

[2020] FCCA 636

Catchwords:
INDUSTRIAL LAW – Extension of time application – general protections claim – factors to be considered – extension of time granted.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 368, 370

Federal Circuit Court Rules 2001 (Cth), r.2.05
Workplace Relations Act 1996 (Cth), s.170CK

Cases cited:

Knight v Visionstream Australia Pty Ltd [2017] FCA 1513

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Clarke v Service to Youth Council Incorporated [2013] FCA 1018
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
Thompson v Big Bert Pty Ltd (2007) 168 IR 309
Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716

Applicant:

BLAKE MANN

First Respondent:

S & PLS PTY LTD (ACN 627 533 153)

Second Respondent:

PUKSER LAMICHHANE

Third Respondent:

SUDHIR LAMICHHANE

File Number:

PEG 270 of 2019

Judgment of:

Judge Kendall

Hearing date:

19 March 2020

Date of Last Submission:

19 March 2020

Delivered at:

Perth

Delivered on:

20 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr D Stojanoski

Solicitors for the Applicant:

Slater + Gordon Lawyers

Counsel for the Respondents:

Mr D Singh

Solicitors for the Respondents:

Friedman, Lurie, Singh and D’Angelo

ORDERS

The time for filing of the application be extended under s.370(a)(ii) of the Fair Work Act 2009 (Cth) to 10 July 2019.
The matter be referred to a mediation before a Registrar of this Court on a date to be fixed by that Registrar.
If the matter does not resolve at the mediation referred to in order 2, the matter be listed for directions before the Court on a date to be fixed.
Costs, if any, be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 270 of 2019

BLAKE MANN

Applicant

And

S & PLS PTY LTD (ACN 627 533 153)

First Respondent

PUKSER LAMICHHANE

Second Respondent

SUDHIR SHRESTHA

Third Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in these proceedings, Mr Mann, filed an application in this Court (the “Substantive Application”) on 9 July 2019 alleging that the first respondent (“S & PLS”) had dismissed him in contravention of s.340 of the Fair Work Act 2009 (Cth) (the “FW Act”). The applicant was not represented when he filed the Substantive Application.
The Substantive Application was filed outside of the statutory time limit provided in s.370(a)(ii) of the FW Act. It was more than 100 days late.
In the circumstances, the applicant requires an extension of time in order to allow him to pursue these proceedings.
The applicant has now filed an application in a case seeking an extension of time within which to file the Substantive Application. He now has legal representation.

Background

On or around 15 February 2019, the applicant filed a General Protections application in the Fair Work Commission (the “FWC”) alleging that he was dismissed in contravention of a general…

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 Mann v S and PLS Pty Ltd

Details

AGLC: Mann v S and PLS Pty Ltd [2020] FCCA 636
Case: [2020] FCCA 636
Decision Date: 20 March 2020

CaseChat Overview and Summary

In *Mann v S and PLS Pty Ltd*, heard before Judge Kendall in the Federal Court of Australia, the applicant, Mr Mann, sought an extension of time to file an application for relief under the general protections provisions of the *Fair Work Act 2009* (Cth). The dispute concerned Mr Mann's claim that he had been subjected to adverse action by his employer, S and PLS Pty Ltd, for exercising a workplace right. The application for relief was filed outside the prescribed time limit of 60 days from the date of the alleged adverse action.

The primary legal issue before the Court was whether to grant Mr Mann an extension of time to bring his general protections claim. In determining this, Judge Kendall was required to consider the factors relevant to an application for an extension of time under the *Fair Work Act*, including the length of the delay, the reasons for the delay, and the merits of the proposed claim. The Court also had to assess whether granting an extension would be in the interests of justice, considering the potential prejudice to both the applicant and the respondent.

Judge Kendall applied the principles established in case law concerning extensions of time for general protections claims. The Court noted that while the time limits are important, they are not absolute, and discretion exists to grant an extension where appropriate. In this instance, the Court found that Mr Mann had provided a sufficient explanation for the delay, which was not excessive, and that his proposed claim appeared to have sufficient merit to warrant further consideration. The Court weighed these factors against the potential prejudice to the respondent, concluding that the interests of justice favoured granting the extension.

Consequently, Judge Kendall ordered that the time for filing Mr Mann's application be extended.

Orders