Mr Daniel Innes v Pre Pty Ltd

[2013] FWC 1419

[2013] FWC 1419

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Innes
v
Pre Pty Ltd
(C2012/6078)

COMMISSIONER CLOGHAN PERTH, 7 MARCH 2013

Application to deal with contraventions involving dismissal.

[1] On 20 November 2012, Mr Daniel Innes (“Applicant”) made application to Fair Work Australia, now Fair Work Commission (“Commission”) to deal with a general protections dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (“FW Act”).

[1] The application was made pursuant to s.365 of the FW Act.

[2] Mr Innes alleges that he was dismissed by Pre Pty Ltd (“Employer”).

[3] Mr Innes states in his application that he was dismissed by the Employer on 18 September 2012.

[4] A preliminary jurisdictional issue arises in that the Applicant has not filed his application within the standard statutory time of 60 days as required in paragraph 366(1)(a) of the FW Act. Further, the Employer denies that it took any action against the Applicant in contravention of Part 3-1 General Protections of the FW Act.

[5] The Fair Work Commission may allow a further period in which the application can be filed (see paragraph 366(1)(b) of the FW Act) if it is satisfied 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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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

RELEVANT LEGISLATIVE FRAMEWORK

[6] Sections 365 and 366 of the FWA Act provide:

365 Application for FWA to deal with a dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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

CONCLUSION TO APPLICATION

[7] On 6 February 2013, I issued procedural directions which required the Applicant to make a submission as to why exceptional circumstances existed to allow the application to be made beyond the standard 60 days after the dismissal took effect.

[8] The Applicant was required to make his submission by 4:00 pm on 21 February 2013. The Applicant failed to provide a submission and did not communicate with the Commission as to why he was unable to make a submission.

[9] The procedural directions advised Mr Innes that if he did not make a submission, the application would be dismissed for want of prosecution. Further, the Commission has no jurisdiction to deal with the application.

[10] Accordingly, pursuant to paragraph 587(3)(a) of the FW Act, the application is dismissed. An Order to this effect is issued conjointly with this decision.

COMMISSIONER

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