DECISION

Fair Work Act 2009
s.365—General protections

Mario Alam
Imedicine Pty Ltd
(C2019/2297)

COMMISSIONER YILMAZ

MELBOURNE, 30 AUGUST 2019

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

Introduction

[1] On 8 April 2019, Dr Mario Alam (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant entered an Independent Practitioner Agreement with Imedicine Pty Ltd t/as The Health Lodge (the Respondent) in 2017. The Applicant submits he commenced with the Respondent in February 2017. The Applicant submits he was dismissed on 13 February 2019 after four weeks’ notice. The application was filed with the Commission on 8 April 2019; 54 days after 13 February 2019.

[2] In the Applicant’s originating application, the Respondent’s legal name was stated as “Imedicine Pty Ltd t/as” which did not accurately reflect the actual name of the Respondent. On 24 June 2019, the parties agreed to amend the name of the Respondent in the application to Imedicine Pty Ltd t/as The Health Lodge.

[3] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 33 days after the 21-day statutory time limit expired.

[4] Leave to appear for the Respondent’s Representative was sought. Following consideration of the arguments, I permitted legal representation to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Background

[5] The Applicant was a medical practitioner that entered an Independent Practitioner Agreement (the Agreement) with the Respondent. The Respondent is an integrative medical facility in Byron Bay providing multidisciplinary health care. The Agreement recognises that the medical practitioner is a self-employed professional operating out of the facility. The services provided to the practitioner from the facility includes access to a clinic/ treatment room, laundry, merchant facilities, public liability insurance, telephone, power, access to office equipment, administrative/reception staff and professional services including accountancy support and limited marketing. The facility collects the fee from patients in accordance with the Agreement, retains the clinic service charge as per the Agreement and pays the practitioner the balance of the collected patient fees on a fortnightly basis. The Agreement also stipulates that the clinic’s schedule of fees based on gross annual consultation income may be varied by consensus between the Directors of the facility.

[6] A condition of the Agreement is that the practitioner is to hold and show evidence of professional indemnity insurance for himself, and that the practitioner’s insurance shall indemnify the facility against any claims arising out of any relationship between the practitioner and the patient.

[7] The Agreement stipulates that it does not constitute an employment relationship and the Agreement may be terminated by either party…

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: [2019] FWC 5867
Decision Date: 30 AUGUST 2019

CaseChat Overview and Summary

In Mario Alam Imedicine Pty Ltd, the respondent sought to have the applicant dismissed, leading to a general protections dispute. The application to deal with the dispute was made outside the statutory 21-day limit, and the issue before the court was whether there were exceptional circumstances that justified extending the time for the application. The court had to determine if the late application should be allowed and if the respondent's opposition should be dismissed.

The court examined the legal framework for late applications, noting that the Fair Work Act allows for extensions of time if there are exceptional circumstances. The applicant argued that the delay was due to the complexities of the case and the need for further evidence, but the court found that this did not amount to exceptional circumstances. The respondent opposed the extension, highlighting that strict adherence to statutory timelines was necessary to maintain the integrity of the dispute resolution process.

In its decision, the court concluded that the applicant had not demonstrated exceptional circumstances that warranted an extension of time. The late filing of the application was attributed to the applicant's own failure to manage the case efficiently. Consequently, the application was dismissed, and the court denied the request to extend the time for the application. This decision underscores the importance of timely filing in general protections disputes, reinforcing the need for adherence to statutory deadlines.

Orders