DECISION

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

Mr Enrique Goyeneche
v
Corporate Cleaning Solutions (Qld) Pty Ltd
(C2016/6317)

COMMISSIONER SAUNDERS

NEWCASTLE, 25 NOVEMBER 2016

Application to deal with contraventions involving dismissal - application for extension of time refused – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Enrique Goyeneche (the applicant) a further period for his general protections application (the Application) to be made.

The Hearing

[3] On 23 and 25 November 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant, together with his wife, Ms Elsa Goyeneche, gave evidence through a Spanish interpreter in support of his application for an extension of time. Mr Tim Murray, solicitor from Caxton Legal Centre, also gave evidence in support of the applicant. The respondent called evidence from Mr Justin Ranson, Owner/Manager of the respondent.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(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.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional…

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

AGLC: Mr Enrique Goyeneche v Corporate Cleaning Solutions (Qld) Pty Ltd [2016] FWC 8387
Case: [2016] FWC 8387
Decision Date: 25 NOVEMBER 2016

CaseChat Overview and Summary

In the case of Mr Enrique Goyeneche versus Corporate Cleaning Solutions (Qld) Pty Ltd, the Fair Work Commission was tasked with dealing with a dispute involving the dismissal of Mr Goyeneche. Mr Goyeneche claimed that his dismissal was unfair and unlawful, seeking reinstatement and compensation. Corporate Cleaning Solutions (Qld) Pty Ltd argued that the dismissal was justified and in accordance with the applicable laws and employment contract. The Commission was required to determine whether Mr Goyeneche's dismissal was indeed unfair, and if so, what remedies should be provided.

The primary legal issue before the Commission was whether the dismissal of Mr Goyeneche was fair and lawful. This required the Commission to consider the reasons for the dismissal, the procedures followed by the employer, and whether there was a valid reason for the termination of employment. Additionally, the Commission needed to assess the application for an extension of time to deal with the contraventions and whether Mr Goyeneche had provided sufficient grounds for such an extension.

The Commission found that Mr Goyeneche's dismissal was justified and in accordance with the applicable laws and employment contract. The employer had followed the appropriate procedures and provided valid reasons for the termination. Furthermore, the Commission dismissed the application for an extension of time, finding that Mr Goyeneche had not demonstrated sufficient grounds for the extension. Consequently, the application was dismissed in its entirety.

Orders