Mr Scott Hartill-law v Bamaga Enterprise Limited

[2012] FWA 3881

[2012] FWA 3881

FAIR WORK AUSTRALIA

DECISION

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

Mr Scott Hartill-law
v
Bamaga Enterprise Limited
(C2012/2545)

COMMISSIONER BOOTH BRISBANE, 4 MAY 2012

Application to deal with contraventions involving dismissal filed out of time

[1] On 3 February 2012 Mr Scott Hartill-Law (the Applicant) filed an application pursuant to s. 365 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment.

[2] The termination of the Applicant’s employment took effect on 11 October 2011. Therefore, the Applicant’s application was 66 days outside the time limit provided for in the Act.

[3] On 5 March 2012 directions about the further conduct of this matter were published. These included that the Applicant provide submissions by 12 April 2012 and Bamaga Enterprise Limited (the Respondent) provide submissions by 10 May 2012.

[4] The Applicant did not comply with the direction and was contacted by telephone.

[5] The Applicant advised that he did not receive the original email and a copy of the original directions was re-sent. The Applicant then requested an extension of time to file his submissions.

[6] The Applicant and the Respondent were advised that an extension of time to lodge the submissions would be granted until 20 April 2012. The Respondent objected to the extension of time to file submissions and sought the matter be discontinued for want of prosecution.

[7] The Respondent and the Applicant were directed to make any submissions on the granting of the extension of time to lodge submissions.

[8] In support of the objection to the granting of an extension of time, the Respondent submits that while it is possible that the Applicant did not receive either the hard copy correspondence or the e-mail it is unlikely that he did not receive both these communications. Further, the directions were confirmed during a telephone conference.

[9] As well, granting the extension of time without first seeking submissions of the Respondent amounts to a material breach of natural justice. Further, that any decision should take into account the circumstances of a Workcover claim that the Respondent alleges are unfavourable to the Applicant.

[10] The Respondent referred to Robert Lim v Downer EDI Mining 1 and Bernadette Shield v Warringarri Aboriginal Corporation2 where comments were made about the strict timelines for lodging an application for unfair dismissal.

The Legislation

[11] Section 577 obliges Fair Work Australia (FWA) to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[12] Further section 578 relevantly requires that in performing functions or exercising powers in relation to a matter FWA must take into account the objects of the relevant part of the Act.

[13] An application under section 365 falls under part 3-1 of the Act.

[14] The objects of this part include protection of workplace rights, freedom of association, and protection from discrimination.

[15] Section 589 empowers FWA to make decisions as to how, when and where a matter is to be dealt with.

Decision

[16] In this matter, the Applicant failed to file his material in support of the extension of time in his substantive claim by the date required. He indicated following inquiry by the Tribunal that he had not received the written directions and was granted until 20 April 2012 to file his material.

[17] The Respondent objected on a number of grounds to an extension of time being granted including on the basis that the Applicant would have been unlikely to have not received both the written and email copy of the Application. The Respondent noted that in another matter the Applicant has had unfavourable comments made and case law supports a strict application of timelines.

[18] I have considered all these objections and have concluded that they do not support a decision to refuse an extension of time. An extension of just over week for the applicant to file his submissions to 20 April 2012 is in all the circumstances, reasonable. I note that the applicant has filed his submissions by this date. I also of the view that the decision is reasonable in light of the obligation of FWA to perform its functions in a way that avoids unnecessary technicalities.

[19] In view of my decision to allow the extension of time until 20 April 2012, I invite the Respondent to make a submission for an extension of time to lodge its submissions.

COMMISSIONER

 1   [2009] FWA 457 dated 2 October 2009.

 2   [2009] FWA 860 dated 29 October 2009.

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