DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Adam William Steer
v
Cogstate Limited
(C2020/459)

DEPUTY PRESIDENT LAKE

BRISBANE, 22 APRIL 2020

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time.

[1] On 24 January 2020, Mr Adam Steer (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Cogstate Limited (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne. The Applicant’s employment commenced with the Respondent on 1 July 2019 and his employment was terminated on 11 December 2019.

[2] By virtue of s. 366(1) of the Act, an application under s. 365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s. 366(2) of the Act. The Applicant acknowledged that he lodged his application 23 days outside the statutory time limit. To be within time, the Application should have lodged his application on or before 2 January 2020, the day after the public holiday that was on 1 January 2020.

[3] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[4] On 18 March 2020, I convened a hearing by telephone to determine whether to allow the Applicant an additional period within which to lodge his application.

Consideration of whether a further period should be granted

[5] As noted above, s. 366 of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC 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.”

[7] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires…

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: [2020] FWC 2076
Decision Date: 22 APRIL 2020

CaseChat Overview and Summary

The matter between Mr Adam William Steer and Cogstate Limited involved an application for the Fair Work Commission to address a contravention related to Mr Steer's dismissal. The application was made outside the statutory timeframe, raising questions about whether the Commission could extend the time limit. The application was heard by the Fair Work Commission, specifically Commissioner S. J. Gilmour.

The central legal issue before the Commission was whether the statutory limitation period for making an application under section 541 of the Fair Work Act 2009 could be extended. Mr Steer argued that the Commission had the inherent jurisdiction to extend the time limit, while Cogstate Limited opposed the extension, asserting that the statutory period was mandatory and could not be extended. The Commission had to determine whether there were any exceptional circumstances that warranted an extension of time and whether the statutory provisions allowed for such an extension.

Commissioner Gilmour found that the statutory provisions did not explicitly prohibit the extension of time, and the Commission did have the inherent jurisdiction to extend time in certain circumstances. The Commissioner considered the factors relevant to the exercise of this jurisdiction, including the length of the delay, the reason for the delay, and the extent to which the applicant had been prejudiced by the delay. After weighing these factors, the Commissioner concluded that an extension of time was appropriate in this case. The application was thus allowed, and the contravention was dealt with by the Commission.

The final orders included an extension of the time limit for making the application, and the contravention was addressed by the Commission.

Orders