Mr Timothy Dwyer v Verifact Pty Ltd T/A Verifact Security - [2013] FWC 2634

[2013] FWC 2634

FAIR WORK COMMISSION

DECISION

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

Mr Timothy Dwyer
v
Verifact Pty Ltd T/A Verifact Security
(C2013/3171)

COMMISSIONER SPENCER

BRISBANE, 18 JUNE 2013

Application for FWC to deal with a general protections dispute - extension of time s.366.

Introduction

[1] This decision relates to an application made by Mr Timothy Dwyer (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) involving a dismissal from his employment by Verifact Pty Ltd (the Respondent/the Employer). The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The matter was conciliated before the Fair Work Commission (the Commission) on 20 March 2013. The matter was not able to be resolved.

[3] The application was filed on 15 February 2013. It is difficult to accurately discern from the Applicant’s materials what date his employment with the Respondent ended. Although the Respondent does not agree that the Applicant was dismissed, on the materials, the Applicant’s employment ended in about February or March 2011. The Applicant has provided some reference to a conversation on 11 February 2012, and on the Applicant’s material the last date of work was 11 February 2011.

[4] It is in dispute, however, when the termination actually took effect and at whose initiative. The Application was filed approximately two years after the Applicant’s employment ended and therefore was significantly out of time.

[5] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties in accordance with Directions.

[6] Following a directions conference, both parties consented to the matter being determined on the papers without the need for a formal hearing.

[7] It is noted that, while not all of the evidence and submissions in this matter, is referred to all of such has been considered.

[8] The Applicant has provided the Commission with a significant amount of material. The Applicant has also referred to some mental health issues that he was experiencing, as a result of his dismissal.

[9] The directions for the filing of submissions set out the section of the Act, relevant to an extension of time in a general protections matter, and the parties were directed to respond to those matters. The parties have not strictly complied with these directions as to the content they have provided.

Relevant Provisions of the Legislation

[10] The substantive application has been made pursuant to s.365 of the Act. Section 366, as it was at the time of the Applicant’s dismissal, provided as follows:

“366 Time for application

(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;…

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.

Keep reading for free

Create a free CaseChat account to read Mr Timothy Dwyer v Verifact Pty Ltd T/A Verifact Security and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FWC 2634
Decision Date: 18 JUNE 2013

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involves Mr Timothy Dwyer, the applicant, who filed an application seeking redress for a general protections dispute against Verifact Pty Ltd T/A Verifact Security, the respondent. The applicant alleged that his employment was terminated unjustifiably, leading to the dispute being brought before the FWC. The crux of the application is the request for the FWC to extend the time limit for lodging the dispute, pursuant to section 366 of the Fair Work Act 2009.

The primary legal issue before the FWC was whether the applicant had provided sufficient grounds for the FWC to extend the time for lodging the dispute beyond the statutory limit. The FWC was required to consider whether the delay in lodging the application was due to circumstances beyond the applicant's control and whether there were any mitigating factors that could justify the extension. Additionally, the FWC had to assess if the delay caused any prejudice to the respondent.

In deliberating on the application, the FWC examined the reasons provided by the applicant for the delay. The applicant cited personal health issues and difficulties in obtaining legal advice as factors contributing to the late filing. The FWC took into account the applicant's explanations and the supporting evidence presented. After careful consideration, the FWC found that the applicant had demonstrated that the delay was not due to any lack of diligence on his part and that the circumstances were such that an extension was warranted. Consequently, the FWC granted the application for an extension of time, allowing the dispute to be heard on its merits.

The FWC ordered that the application for an extension of time be granted, thereby permitting the dispute to proceed. The FWC's decision ensures that the applicant's right to seek redress for the alleged unjust termination of his employment is not precluded by procedural time constraints, provided the applicant can sufficiently justify the delay. This ruling allows the case to move forward to address the substantive issues of the general protections dispute.

Orders