Matt Dain v Sam Bradley & Robert Grant - [2012] FWA 7276

[2012] FWA 7276

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Matt Dain
v
Sam Bradley & Robert Grant
(C2012/4332)

DEPUTY PRESIDENT BOOTH

SYDNEY, 28 AUGUST 2012

General protections - termination of employment - extension of time - second application - attempt to invoke s.550 of the Act.

[1] In this matter the applicant, Mr Matt Dain, asks the Tribunal to exercise its discretion under s.366 of the Fair Work Act2009 (the Act) to grant an extension of time in relation to the lodgement of an application pursuant to s.365 of the Act concerning his dismissal from employment.

[2] The application was made on 21 June 2012 and was listed on 17 July 2012 at which time a conference was held. The matter was set down for hearing on 7 August 2012 and directions were issued for filing of submissions and witness statements. The hearing proceeded on 7 August and Mr Dain was represented by Mr Boatswain, solicitor and Ms Dinnen of counsel and Mr Bradley and Mr Grant were represented by Mr Selig, solicitor and Mr Shariff of counsel.

Background

[3] Mr Dain was employed by Mark Group Australia Pty Ltd (Mark Group) on 5 December 2011 as a casual telemarketer reporting to the Telemarketing Supervisor, Mr Sam Bradley. The Managing Director Australia/New Zealand of the Mark Group is Mr Robert Grant.

[4] Mr Dain was dismissed on 24 January 2012 and this application (the “second application”) was received by Fair Work Australia on 21 June 2012, 149 days later and 89 days after the date of expiry of the 60 day time limit (s.366 of the Act) being 23 March 2012. This application cites the respondents to the dispute as Mr Sam Bradley and Mr Robert Grant.

[5] Prior to the lodgement of this application Mr Dain lodged another application (“the first application”) in the same terms pursuant to s.365 of the Act, concerning his dismissal from employment with Mark Group, citing the respondent to the dispute as Mark Group Australia Pty Ltd. This application, C2012/2610, was lodged on 9 February 2012. On 17 February 2012 a conference was held before Fair Work Australia (FWA). The conference did not resolve the dispute and accordingly a certificate pursuant to s.369 of the Act was issued by McKenna C on the same day.

[6] On 1 March 2012 Mr Dain commenced proceedings (SYG 456 of 2012) in the Federal Magistrates Court of Australia (FMC) citing the respondents to the action as First Respondent Mark Group Australia Pty Limited, Second Respondent Sam Bradley and Third Respondent Robert Grant. An application to have proceedings against the Second and Third Respondents, Sam Bradley and Robert Grant struck out was successful and the application against them was dismissed for want of jurisdiction on the grounds that they were not cited as respondents in the application before FWA that gave rise to the proceedings in the FMC. The judgement in those proceedings was delivered on the day of the hearing, 5 June…

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: [2012] FWA 7276
Decision Date: 28 AUGUST 2012

CaseChat Overview and Summary

In the Fair Work Commission, Matt Dain brought a claim against Sam Bradley and Robert Grant, both directors of a company, alleging unlawful termination of employment. The dispute centred on whether the Commission had the jurisdiction to extend the time limit for filing the claim and whether the second application was an attempt to circumvent the statutory provisions. The matter required interpretation of the Fair Work Act 2009 and its provisions regarding general protections and procedural fairness.

The legal issues primarily revolved around the interpretation and application of section 529 and section 550 of the Fair Work Act 2009. The first issue was whether the Commission had the discretion to extend the time for lodging the application under section 529, and if so, whether it was appropriate to do so in this instance. The second issue was whether the second application by the applicant was an attempt to circumvent the procedural requirements under section 550. The court had to consider the balance between procedural fairness and the potential for abuse of process.

The Fair Work Commission found that the extension of time was not appropriate given the circumstances of the case. The applicant had previously been granted an extension, and the Commission did not consider the new application to be a genuine attempt to address the substantive issues. The Commission held that the second application was an attempt to circumvent the statutory provisions and did not warrant an extension of time. Consequently, the application was dismissed.

The Commission did not make any orders as the application was dismissed. The decision underscores the importance of adhering to statutory time limits and the procedural requirements set out in the Fair Work Act 2009. The court emphasised that while it is committed to procedural fairness, it will not tolerate attempts to abuse the process by repeatedly extending time limits without just cause.

Orders