Mr Donald Bryant v TL Engineering Pty Ltd

[2012] FWA 3006

[2012] FWA 3006

FAIR WORK AUSTRALIA

DECISION

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

Mr Donald Bryant
v
TL Engineering Pty Ltd
(C2012/2442)

COMMISSIONER CLOGHAN PERTH, 5 APRIL 2012

Application to deal with contraventions involving dismissal.

[1] On 31 January 2012, Mr Donald Bryant (“the Applicant”) made application to Fair Work Australia (FWA) to deal with a dispute in which he alleged that he had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (“the FW Act) on 11 October 2011.

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

[3] The respondent employer named in the application is TL Engineering Pty Ltd (“the Employer”).

[4] On 9 February 2012, the Employer provided the Tribunal with a response to Mr Bryant’s application. In the response, the Employer asserts:

● the application was not made within the standard time limit of 60 days as provided for in the FW Act; and
● the Applicant was not dismissed in contravention of the FW Act. He was dismissed for unsatisfactory work performance, which primarily related to not presenting a medical certificate after taking nine (9) weeks off work and other attendance issues.

[5] Paragraph 366(1)(b) of the FW Act allows the Tribunal to extend the filing of an application beyond 60 days if 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.

[6] On 15 March 2012, I held a conference of the parties and explained the fundamental question for determination, that is, whether there are exceptional circumstances for the Tribunal to allow time to file the application beyond 60 days.

[7] I advised the parties that I intended to deal with this question by way of written submissions.

[8] To assist in an efficient and effective determination of the question of whether there are exceptional circumstances to allow the Applicant to file his application beyond 60 days, a Statement and Directions were issued on 16 March 2012. The Directions required the Applicant to provide a written submission by 30 March 2012. The Applicant has not provided a written submission or advised the Tribunal of any reason why he is unable to do so.

[9] In the Statement and Directions, I advised the Applicant that should he not provide a written submission, the application would be dismissed for want of prosecution.

[10] Having considered the information provided by the Applicant in his application, the Employer’s response, the criteria in subsection 366(2) of the FW Act and the lack of any written submission by Mr Bryant, I am satisfied that there are no exceptional circumstances to allow a further period beyond the standard 60 days for the application to be made with the Tribunal.

[11] Accordingly, an order will be made dismissing the application and issued conjointly with this Decision.

COMMISSIONER

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