Mr Michael Alistair Lindner v Consunet Pty Ltd - [2023] FWC 2336

[2023] FWC 2336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Michael Alistair Lindner
v

Consunet Pty Ltd

(C2023/4718)

COMMISSIONER PLATT

ADELAIDE, 13 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – extension of time – application dismissed

On 4 August 2023 Mr Michael Alistair Lindner (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of his employment with Consunet Pty Ltd (the Respondent) which is alleged to have occurred on 12 July 2023.

The Fair Work Act 2009 allows 21 days to lodge this application. The application appears to have been made outside of that time frame. This means that an extension of time must be granted by the Fair Work Commission in order for the general protections application to proceed.
By way of the Form F8 application form, the Applicant failed to identify his application was made beyond the 21-day time frame.
The Respondent filed a Form F8A employer response on 18 August 2023, raising the out of time jurisdictional objection.

On 23 August 2023 my Chambers issued a Notice of Listing and sent an email to the parties advising a Hearing was listed via telephone at 10:00am (SA) Wednesday, 13 September 2023 in respect of the extension of time issue raised and provided Directions for the filing of material.

The Applicant was directed to file his material in support of the extension of time application by 4:00pm (SA) Wednesday, 30 August 2023. The Respondent’s material was due by 4:00pm (SA) Wednesday, 6 September 2023.

At 11:10am (SA) on 30 August 2023 my Associate emailed the Applicant a reminder notifying that his material was due by 4:00pm (SA).

At 5:21pm (SA) the same day, my Associate emailed the Applicant advising his submissions were overdue and to file without further delay.

On 4 September 2023 the Applicant contacted my Chambers via telephone and was advised that he should lodge his material without delay. No further correspondence was received.

The Hearing was conducted by teleconference on 13 September 2023. The Applicant did not attend the Hearing at 10:00am (SA). My Associate attempted to contact the Applicant by telephone and email. The Hearing commenced at 10:08am (SA). Mr Haddy represented the Respondent and advised the Application for an extension of time was opposed.
I have no information from the Applicant in support of an application for an extension of time.

Applicable Law

Section 366 of the Act relevantly states:

“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…

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: [2023] FWC 2336
Decision Date: 13 SEPTEMBER 2023

CaseChat Overview and Summary

In the Fair Work Commission, Mr Michael Alistair Lindner applied for an extension of time to lodge a general protections application in relation to his dismissal by Consunet Pty Ltd. The dismissal allegedly occurred on 12 July 2023, and the application was lodged on 4 August 2023, two days beyond the statutory 21-day period. The primary issue before the Commission was whether the delay in lodging the application was due to exceptional circumstances warranting an extension under section 366 of the Fair Work Act 2009.

The Commission considered the criteria outlined in section 366(2) of the Act, which include the reason for the delay, any action taken by the applicant to dispute the dismissal, the prejudice to the employer, the merits of the application, and fairness to other persons in a similar position. The Applicant did not provide any justification for the delay, nor did he demonstrate any action taken to dispute the dismissal. The Respondent argued against the extension, stating that the delay did not prejudice them, but no submission was made that the extension would be unfair to other similarly situated individuals. Given the absence of exceptional circumstances, the Commission found that the application for an extension of time was not supported by the evidence and dismissed the application.

The Commission concluded that Mr Lindner's circumstances did not meet the threshold for "exceptional circumstances" as defined in the Act and relevant case law. Consequently, the application for an extension of time was refused, and the general protections application was dismissed. An order reflecting this decision was issued by the Commission.

Orders