Michael Ryan v Gellibrand River Tourism Pty Ltd

[2011] FWA 4833

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Michael Ryan
v
Gellibrand River Tourism Pty Ltd
(C2011/4549)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 25 JULY 2011

Termination of employment - general protections claim - extension of time.

[1] This decision deals with a request for an extension of time for the lodgement of Mr Ryan’s application pursuant to s.365 of the Fair Work Act 2009 (the FW Act). Mr Ryan’s application is made against Gellibrand River Tourism Pty Ltd. It was the subject of a conciliation conference on 17 June 2011. This conference did not resolve the application but the issuing of a certificate was deferred pending determination of this extension of time issue. This issue was the subject of a hearing on 22 July 2001. At this hearing, by telephone, Mr Ryan represented himself and Gellibrand River Tourism Pty Ltd (Gellibrand) was represented by Mr Kane. At the conclusion of this hearing I advised the parties that I was satisfied that an extension of time should be granted. This decision broadly reflects the reasons for my decision set out in transcript at the conclusion of this hearing.

[2] Mr Ryan’s employment was terminated on 13 March 2011. His application was lodged on 1 June 2011, some 19 days outside of the 60 day time limit prescribed in s.366(1).

[3] Section 366 states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[4] I have considered each of these factors in reaching a conclusion in this matter. In doing so I have taken account of the information provided to me by both Mr Ryan and Mr Kane.

Reason for the delay

[5] Mr Ryan has provided various medical certificates and advices. Of primary significance are medical certificates which indicate that he has anxiety and depression and has been unfit for work from 17 March 2011 to 17 July 2011. For at least some of this time Mr Ryan was in the care of the Barwon Mental Health Service. Mr Ryan advises that his mental illness has reduced his capacity to make decisions.

[6] I am satisfied that Mr Ryan has an acceptable reason for the delay and that this strongly supports the granting of an extension of time.

Any action taken by Mr Ryan to dispute the dismissal

[7] Mr Ryan advises that he took no action other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[8] Mr Ryan asserts that prejudice to Gellibrand is minimal. I have noted that the delay is not a particularly long one and that there is no information which indicates to me that, apart from the prejudice associated with granting the extension of time, Gellibrand would be disadvantaged.

The merits of the application

[9] On the information provided to me I have some doubt about Mr Ryan’s capacity to successfully pursue his application. However, this falls well short of a basis upon which the extension of time could be refused.

Fairness between Mr Ryan and other persons in a like position.

[10] I have noted that Fair Work Australia has granted extensions of time in situations where an applicant establishes that the delay is a consequence of a medical condition.

Conclusion

[11] On the basis of the information provided to me I am satisfied that Mr Ryan’s situation represents exceptional circumstances such that an extension of time should be granted. An Order [PR512461] reflecting this decision will be issued together with a Certificate pursuant to s.369.

SENIOR DEPUTY PRESIDENT

Appearances:

M Ryan on his own behalf.

D Kane for Gellibrand River Tourism.

Hearing details:

2011.

Adelaide (By telephone):

July 22.

Printed by authority of the Commonwealth Government Printer

Michael Ryan filed a general protections claim against Gellibrand River Tourism Pty Ltd in the Fair Work Commission, alleging that his employment was terminated without just cause or excuse. Ryan contended that he was dismissed for reporting health and safety violations, and sought an extension of time to lodge his claim, which was initially deemed to be outside the requisite statutory period. The central legal issue before the Commission was whether Ryan's claim was within the allowable time frame for filing a general protections claim, and if not, whether exceptional circumstances justified an extension.

The Commission examined the statutory provisions governing the time limits for lodging a general protections claim and considered Ryan's arguments for an extension. Ryan argued that he was unaware of the health and safety violations until a later date, which he claimed was a significant factor in his delayed filing. The Commission recognised that the statutory time limit is strict but acknowledged the potential for exceptions in cases of genuine unawareness or where the delay was not attributable to the applicant's fault. Ultimately, the Commission found that Ryan's unawareness of the full circumstances surrounding his dismissal constituted exceptional circumstances warranting an extension of time.

The Fair Work Commission granted Ryan's application for an extension of time to file his general protections claim. The Commission determined that the delay was not due to Ryan's fault and that he had acted promptly once he became aware of the relevant facts. The Commission emphasised the importance of the employer's compliance with health and safety obligations and the protection of employees who report such issues. The Commission ordered that Ryan's claim would be considered on its merits, subject to any further procedural requirements.

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