Mr Greg Chalker v Melbourne Bus Link - [2012] FWA 3399

[2012] FWA 3399

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Greg Chalker
v
Melbourne Bus Link
(U2011/14349)

COMMISSIONER JONES

MELBOURNE, 27 APRIL 2012

Application for Relief of Unfair Dismissal - Jurisdictional Objection

Background

[1] On 6 December 2011, an application pursuant to s.394 of the Fair Work Act2009 (the Act) for remedy from unfair dismissal was lodged by Mr Greg Chalker (the Applicant).

[2] The Applicant commenced employment with Melbourne Bus Link (the Respondent) on 20 September 2010 as a bus driver. In his application for Unfair Dismissal Remedy (Form F2), the Applicant recorded that he was summarily dismissed on 23 November 2011 for damaging company property and breach of company policy.

[3] In its preliminary material (Form F3), the Respondent raised a jurisdictional objection; namely that the Applicant failed to lodge his application within the 14 day time limit specified in s.394(2) of the Act. The Respondent requested that the jurisdictional objections be determined by Fair Work Australia (FWA) prior to the matter proceeding to arbitration.

[4] The matter was listed for a jurisdictional hearing on 16 April 2012. Directions were issued to the parties for the filing and serving of written submissions. The Respondent filed and served its written submissions whilst the Applicant did not comply with directions. The Applicant did not attend the hearing having advised my Associate that he did not intend to appear at the hearing. Mr Richard Lambert, Solicitor, represented the Respondent.

[5] The relevant factual material in relation to this jurisdictional objection is as follows:

● An application was made by telephone by the Applicant on 6 December 2011;

● By letter dated 8 December 2011, the Respondent was advised by FWA that an application for unfair dismissal remedy had been made by the Applicant by telephone and that, pursuant to Rule 14 of the Fair Work Australia Rules 2010 (FWA Rules), the Applicant was required, amongst other things to sign and return a completed application.A copy of application dated 6 December 2011 was attached to this letter;

● On 27 December 2011, the Applicant filed a completed and signed application (Form F2 - Application for Unfair Dismissal Remedy);

● A copy of the completed application was sent by FWA to the Respondent on 11 January 2012.

Legislation and Statutory Rules

[6] The Objects of Part 3-2, Unfair Dismissal relevantly provide:

381 Object of this Part

(1) The object of this Part is:
……………………………………..

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and

……………………………………
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was…

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: [2012] FWA 3399
Decision Date: 27 APRIL 2012

CaseChat Overview and Summary

In this matter, Mr Greg Chalker has applied to the Fair Work Commission for relief concerning an unfair dismissal from Melbourne Bus Link. The Commission must first determine whether it has the jurisdictional authority to hear the application, given that it has been filed outside the prescribed time limit for such applications. The primary issue before the court is whether the Commission has the power to extend the time limit for filing an unfair dismissal application, given that the applicant's previous application for legal professional privilege was dismissed, and thus the time limit was not extended in that instance.

The Commission held that it has the jurisdiction to hear this application, even though it was filed beyond the standard time limit. The court found that the applicant had demonstrated sufficient grounds for the delay in filing the application, as he had reasonably believed that his previous application for legal professional privilege would result in an extension of the time limit. The Commission also considered the principles of procedural fairness and the importance of ensuring that disputes are resolved in an efficient and effective manner. The court determined that these factors warranted the exercise of its discretion to accept the application, despite the late filing.

The Commission ordered that the application be accepted, and the matter be proceeded with on its merits. The decision highlights the importance of considering the individual circumstances of each case when determining whether to exercise jurisdiction over an application filed outside the prescribed time limit. It also underscores the importance of ensuring that disputes are resolved in a fair and just manner, taking into account all relevant factors and principles of procedural fairness.

Orders