DECISION

Fair Work Act 2009
s.365—General protections

Myles Nyawasha
v
E & S Trading Co
(C2019/2017)

DEPUTY PRESIDENT BOYCE

SYDNEY, 13 JUNE 2019

Application to deal with contraventions involving dismissal – request for extension of time to file application - applicant first filed unfair dismissal claim that was within jurisdiction – later withdrew unfair dismissal application and filed general protections application - application filed 75 days out of time – no reasonable explanation for lengthy delay - not a strong case on merits – no exceptional circumstances – extension of time refused.

[1] On 27 March 2019, Mr Myles Nyawasha (“Applicant”) lodged an application in the Fair Work Commission (“Commission”) pursuant to s.365 of the Fair Work Act 2009 (Cth)(“Act”). The Applicant did so by filing a Form F8 through the Commission’s website (“General Protections Application”).

[2] The Applicant claimed that his employment with E & S Trading Co (Discounts) Pty Ltd (“Respondent”) was terminated by the Respondent on 11 January 2019 in contravention of Part 3-1 of the Act. The Applicant’s employment with the Respondent commenced on or about 3 July 2017.

[3] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[4] The Applicant acknowledges that he lodged his application 75 days outside of the statutory time limit. To be within time, the Applicant should have lodged his Application on or before 1 February 2019.

[5] On 24 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his Application.

[6] The Applicant represented himself at the Hearing. The Respondent was represented by Mr Nick Tindley of the FCB Group. Permission was granted to Mr Tindley to represent the Respondent and appear at the hearing on the basis that I was satisfied that the matter would be conducted on a more efficient basis (i.e. in short, having one party legally represented is better than neither party being legally represented). The Applicant did not object to Mr Tindley being granted permission to appear.

[7] At the hearing, I delivered an ex tempore decision and determined that the Applicant’s request for an extension of time be dismissed. These are the reasons for that decision.

Matters to be taken into account

[8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC…

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: [2019] FWC 4078
Decision Date: 13 JUNE 2019

CaseChat Overview and Summary

The applicant, Myles Nyawasha, sought an extension of time to file an application in relation to contraventions involving dismissal against the respondent, E & S Trading Co. The application was lodged with the Fair Work Commission. Initially, the applicant had filed an unfair dismissal claim which fell within the jurisdiction of the Commission. However, the applicant later withdrew this claim and filed a general protections application instead. The new application was submitted 75 days beyond the statutory time limit, and the applicant did not provide a reasonable explanation for the significant delay. The merits of the case were not strong, and the Commission found that there were no exceptional circumstances present that would warrant an extension of time.

The legal issues before the Commission involved the interpretation and application of the time limits for filing applications in contraventions involving dismissal cases. The Commission needed to determine whether the applicant’s significant delay in filing the application could be excused, and if the case had sufficient merit to warrant an extension of time. The Commission also had to consider whether the applicant had provided a reasonable explanation for the delay and if there were any exceptional circumstances that would justify the late filing.

The Commission held that the applicant had not provided a reasonable explanation for the delay in filing the application. Additionally, the case lacked sufficient merit to warrant an extension of time. The Commission found that there were no exceptional circumstances present that would justify the late filing. The Commission emphasised that strict compliance with time limits is necessary to ensure the efficient and timely resolution of disputes. The application for an extension of time was therefore refused.

The Fair Work Commission refused the application for an extension of time to file the application in relation to the contraventions involving dismissal. The Commission held that the applicant had not provided a reasonable explanation for the delay and that the case did not have sufficient merit to warrant an extension of time. Additionally, the Commission found that there were no exceptional circumstances present that would justify the late filing. The Commission emphasised the importance of strict compliance with time limits to ensure the efficient and timely resolution of disputes.

Orders