Mr Erik Reh v Bechtel Australia Pty Ltd

[2014] FWC 7197

[2014] FWC 7197

FAIR WORK COMMISSION

DECISION

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

Mr Erik Reh
v
Bechtel Australia Pty Ltd
(C2014/6497)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 OCTOBER 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] The Applicant, Mr Erik Reh, lodged an application under s.365 of the Fair Work Act 2009 (“the Act”) on 23 September 2014, alleging that in dismissing him from employment on 1 September 2014, Bechtel Australia Pty Ltd (“the employer”) had contravened the general protections provisions of the Act.

[2] The application is subject to s.366 of the Act, which provides as follows:

366 Time for application

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

(a) within 21 days after the dismissal took effect; or

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

(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

(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.

[3] Section 366 of the Act requires an application made under s.365 of the Act to be made within 21 days after the dismissal that gave rise to the action took effect or within such further period as the Commission allows under s.366(2). In the Applicant’s case, the application was filed one day outside this time.

[4] The Applicant provided evidence that he took repeated steps on the evening of 22 September 2014 to file his application by way of the Commission’s e-lodgment on-line facility. On the occasions when the Applicant sought to upload his documents he claimed to have received a popup indicating that:

file_bechtel__fwc_no_upload_.jpg - always waiting for connection

[5] The Applicant contacted the Commission the following day and enquired as to how to overcome the problem he had encountered. He was advised to forward his application by email.

[6] The Applicant had more success by making a lodgement by direct email. By this time, however, the application was lodged one day beyond the 21 day period stipulated at s.366(1)(a) of the Act.

[7] The Applicant claimed that but for the upload issue that arose (which may have been because his file exceeded the data limits of the Commission’s system) he would have lodged his application consistent with the requirements of s.366 of the Act.

[8] The employer has elected not to challenge the Applicant’s claims in this regard.

[9] The Applicant’s materials (for the purposes of s.366(2)(b)) do not demonstrate that he has taken steps to challenge the decision to dismiss him other than by making this application.

[10] For the purposes of s.366(2)(c) of the Act, the employer, in so far as it has elected not to press the jurisdictional objection under s.366 of the Act, implies that it is not prejudiced by the circumstances of the application, including the prejudice caused by the delay.

[11] As is ordinarily the situation, there has been no opportunity to evaluate the merits of the respective substantive cases for purposes of s.366(2)(d) of the Act. The relative merits of the respective cases bear only neutrally upon the judgement I need to make in respect of this matter.

[12] The materials demonstrate that there is no other person to whom reference is made for comparative fairness purposes under s.366(2)(e) of the Act, nor is there any suitably comparative case to which the Applicant has referred in his materials.

Conclusion

[13] The Applicant’s efforts on the 21st day following his dismissal taking effect to lodge his application under s.366 of the Act were defeated because of connectivity issues seemingly related to data upload limitations. The application was subsequently made on the 22nd day by way of e-mail, following consultation with Commission administrative employees. The Applicant’s claims in these regards went unchallenged.

[14] In this context, I am persuaded that I should exercise my discretion to allow the application in another period of time (other than that set out in s.366(1)(a) of the Act) because the technical difficulties experienced by the Applicant constitute exceptional circumstances which on the uncontested claims before me appear not to have been the responsibility of the Applicant (or otherwise cannot be determined to have been the personal responsibility of the Applicant).

[15] As a consequence of this finding, the application will be listed for conference in the near future.

SENIOR DEPUTY PRESIDENT

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