Nathan Byatt v Advanced Traffic Management (WA) Pty Ltd

[2016] FWC 7506

[2016] FWC 7506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nathan Byatt
v
Advanced Traffic Management (WA) Pty Ltd
(C2015/6040)

DEPUTY PRESIDENT DEAN SYDNEY, 21 OCTOBER 2016

Application to deal with contraventions involving dismissal – application for an extension of time – extension denied.

[1] On 10 September 2015, Mr Nathan Alfie Byatt (the Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Advanced Traffic Management (the Respondent) in contravention of the general protections provisions in the Act. Mr Byatt’s application states that he was dismissed on 11 August 2015. The application was therefore lodged 9 days outside the 21 day time period prescribed by s.366 of the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[2] The Commission file records that during the period between September and November 2015, the Commission’s registry staff made numerous unsuccessful attempts to contact the Applicant. The matter was listed for a hearing on 24 December 2015 to deal with the out of time issue. That hearing was vacated due to the Applicant’s non-compliance with the Commission directions.

[3] In August 2016 the matter was referred to me for consideration of the extension of time issue. Several attempts were made to contact the Applicant and his partner, Ms T Farnell, who was named in the application as the Applicant’s representative to ascertain whether the Applicant intended to proceed with his application. Neither the Applicant nor Ms Farnell has contacted the Commission.

[4] In the circumstances, my office sent an email to the parties on 12 October advising that the matter was set down for a hearing by telephone on 21 October for the Commission to decide whether an extension of time should be granted. The Applicant was asked to provide his contact details for the telephone hearing by 20 October. A notice of listing was sent to the Applicant by email and by post to the address provided in the application. The Respondent was informed that they would not be required to attend and that a further hearing would be scheduled should the Commission need to hear the Respondent.

[5] There has been no response from the Applicant.

[6] On 21 October 2016, the Commission was unable to contact the Applicant and his partner on the numbers provided in the application. The hearing therefore did not proceed.

[7] In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[8] Mr Byatt’s application states that the delay in filing the application was due to his partner’s alleged health problems: ‘As my partner’s health was a priority I lacked the time and assistance from my partner to complete the application.’

[9] The Applicant has not provided any details or evidence of his partner’s alleged health problems.

[10] In the absence of any supporting document/evidence by the Applicant and given the circumstances outlined above, I am not satisfied that there are any exceptional circumstances which would warrant granting an exception to the statutory time limit. Accordingly, the application is dismissed.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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