Mr Shaun Alexander v DYZ Australia Pty Ltd T/A Shield Dry Cleaners - [2010] FWA 6186

[2010] FWA 6186

FAIR WORK AUSTRALIA

DECISION

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

Mr Shaun Alexander
v
DYZ Australia Pty Ltd T/A Shield Dry Cleaners
(C2010/3052)

COMMISSIONER GOOLEY

MELBOURNE, 12 AUGUST 2010

[1] On 26 February 2010 Mr Shaun Alexander made an application to Fair Work Australia pursuant to section 365 of the Fair Work Act 2009 (FW Act) alleging his employment had been terminated because he had exercised a work place right, because he was entitled to the benefit of a workplace law or alternatively or concurrently because he had a physical disability. Alternatively Mr Alexander alleges he was engaged as an independent contractor and the contract was terminated because he was entitled to the benefit of a workplace law, is able to participate in a proceeding under a workplace law or because he exercised his workplace right.

[2] Mr Alexander had been engaged by DYZ Australia trading as Shield Dry Cleaners and his employment/contract was terminated on 15 December 2009.

[3] The Fair Work Act 2009 provides that an application under section 366:

“(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[4] Mr Alexander did not lodge his application within 60 days of his dismissal. The matter was referred for a conference before me on 23 April 2010 and the matter was not settled.

[5] The application for an extension of time was set down for hearing on 14 May 2010 and on 5 May 2010 Mallesons Stephen Jaques solicitors for Mr Alexander sought an adjournment which was not opposed by RTC Legal the solicitors for the respondent. The matter was then listed for 2 July 2010.

[6] At that hearing Ms Elliot a solicitor with Clayton Utz appeared for Mr Alexander and Mr Nath of counsel appeared for the respondent. Both legal practitioners were given permission to appear.

[7] Neither party called any witnesses and both made submissions as to factual matters which were not objected to.

[8] Section 394 of the FW Act provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection…

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

AGLC: Mr Shaun Alexander v DYZ Australia Pty Ltd T/A Shield Dry Cleaners [2010] FWA 6186
Case: [2010] FWA 6186
Decision Date: 12 AUGUST 2010

CaseChat Overview and Summary

In the case of Mr Shaun Alexander v DYZ Australia Pty Ltd T/A Shield Dry Cleaners, Mr Alexander brought an application to Fair Work Australia under section 365 of the Fair Work Act 2009, alleging that his employment was terminated due to his exercise of workplace rights, entitlement to workplace law benefits, or his physical disability. Alternatively, he claimed that his engagement as an independent contractor was terminated for similar reasons. The dispute centred on whether Mr Alexander's application, filed beyond the statutory 60-day limit, should be granted an extension due to exceptional circumstances.

The primary legal issue was whether the Fair Work Australia (FWA) had grounds to extend the time limit for Mr Alexander's application under section 394(3) of the Fair Work Act. This section allows for an extension if there are exceptional circumstances, taking into account various factors such as the reason for the delay, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other similarly situated persons.

Commissioner Gooley reviewed the evidence and submissions from both parties. Ms Elliot, representing Mr Alexander, argued that his significant cognitive impairment due to a severe brain injury, combined with the lack of communication from his employer regarding the reasons for his dismissal, constituted exceptional circumstances. Mr Alexander's attempts to seek legal advice and his focus on an eviction matter further delayed his application. Conversely, the respondent's counsel argued that Mr Alexander was aware of his contractor status and had ample time to file his application. The Commissioner ultimately found that Mr Alexander's medical condition, the lack of timely communication from his employer, and the failure of his legal representatives to inform him of his rights justified granting an extension of time.

The final orders included issuing a certificate under section 369 of the Fair Work Act, allowing Mr Alexander's application to proceed despite the delay, and scheduling a hearing to address the substantive claims.

Orders