DECISION

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

Mr Peter O'Dea
v
Bovogen Biologicals Pty Ltd
(C2020/5370)

DEPUTY PRESIDENT LAKE

BRISBANE, 27 JANUARY 2021

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

Background

[1] This decision concerns an application by Mr Peter O'Dea (Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Section 366 of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2).

[2] The Applicant’s employment with the Respondent was terminated by way of termination letter dated 5 June 2020, stating the dismissal was with immediate effect and payment of 5 weeks’ wages to be made in lieu of notice.

[3] The application for General Protections Dismissal was filed in the Commission by the Applicant on 9 July 2020, being 34 days after his dismissal and 13 days outside the 21-day statutory timeframe for filing.

[4] My Chambers issued directions for the parties to file materials for a hearing of the extension of time matter, which was listed for hearing on 26 October 2020.

Consideration of whether a further period should be granted

[5] Under s.366 of the Act, a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.3662(2) of the Act. Section 366(2) sets out the circumstances in which the Commission may allow a further period for an application to be made:

“(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.”

[6] Satisfaction of ‘exceptional circumstances’ establishes a high bar for the Applicant. 1 The meaning of ‘exceptional circumstances’ was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd2 (Nulty), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.3 The Full Bench also stated that ‘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 can be considered exceptional.’4

Section 366(2)(a) - reason for the delay

[7] The Act…

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: [2021] FWC 381
Decision Date: 27 JANUARY 2021

CaseChat Overview and Summary

Mr Peter O'Dea brought an application against Bovogen Biologicals Pty Ltd in the Fair Work Commission, contesting the company's dismissal of him. The central issue was whether the Commission should extend the time limit to address the contraventions related to the dismissal. The applicant's request for an extension was based on a series of circumstances he argued warranted special consideration. The Commission was tasked with determining if these circumstances were indeed exceptional and justified an extension under the applicable provisions.

The Commission meticulously examined the applicant's reasons for seeking an extension, assessing whether they met the stringent criteria for exceptional circumstances. It considered various factors including the timeliness of the application, the reasons for the delay, and the impact of the delay on the respondent. The Commission found that while the applicant had presented a range of arguments, none of these individually or collectively constituted exceptional circumstances as required by law. The Commission concluded that the applicant had not sufficiently demonstrated that the delay was beyond his control or that it was necessary to grant an extension in the interest of justice.

Consequently, the application for an extension of time was dismissed. The Commission held that the circumstances presented did not warrant an extension and that the statutory time limits were not to be extended absent clear and compelling justification. The decision underscores the importance of strict adherence to procedural timelines in employment-related matters, unless there are truly exceptional reasons to do otherwise.

The Fair Work Commission ordered that the application for an extension of time be dismissed, and no further extensions would be granted. The dismissal of the application meant that the Commission would not consider the merits of the dismissal or any related contraventions due to the applicant's failure to meet the statutory time requirements.

Orders