Mr Jason Burns v Conco Systems Pty Ltd

[2010] FWA 7195

[2010] FWA 7195

FAIR WORK AUSTRALIA

DECISION

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

Mr Jason Burns
v
Conco Systems Pty Ltd
(C2010/4315)

SENIOR DEPUTY PRESIDENT CARTWRIGHT SYDNEY, 14 SEPTEMBER 2010

Alleged contravention involving dismissal.

[1] Mr Burns lodged an application under s.365 of the Fair Work Act 2009 outside the 60 days provided by s.366(1) and sought that the Tribunal exercise the discretion available under s.366(2) to vary the lodgement period.

[2] S.366(2) provides:

“(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.”

[3] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” I can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.366(2) of the FW Act.

[4] Having considered everything before me in this case, I agree with the submissions made by Mr Boatswain for Conco Systems Pty Ltd and find accordingly in relation to the factors set out in s.366(2).

[5] For the reasons submitted by Mr Boatswain, I am not satisfied that there are exceptional circumstances in this case and decline to exercise discretion to vary the statutory 60 day period.

[6] The application is out of time and it is dismissed.

SENIOR DEPUTY PRESIDENT

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