DECISION

Fair Work Act 2009
s.365—General protections

Nicholas Price
v
Prices Bakery Pty Ltd T/A Prices Bakery
(C2018/666)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 5 APRIL 2018

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 8 February 2018 Mr Nicholas Price (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Prices Bakery Pty Ltd T/A Prices Bakery (Respondent).

[2] The Applicant commenced employment with the Respondent on 1 July 2013. He submitted that he was a director of the Respondent however was also employed as a baker. He says that was dismissed on 13 December 2017 and the dismissal took effect on that day. 1

[3] The application therefore was lodged 36 days out of time.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Alleged Contravention

[5] The Applicant submitted that he was dismissed because he had taken personal leave 2. A breach of s.340, s.344, s.346 and s.352 is alleged.

[6] The Respondent submitted that Mr Price was not dismissed as he was not an employee. 3

Procedural background

[7] On 13 February 2018, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 23 March 2018.

[8] The Applicant sought permission to be represented by a lawyer or paid agent. I was not satisfied that any of the criteria in section 596(2) of the Act were met and accordingly permission was refused. The Respondent was represented by Mr Matthew Lee, director.

Legislative scheme

[9] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

“(1) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[10] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

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

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.

Continue reading Nicholas Price v Prices Bakery Pty Ltd T/A Prices Bakery

Details

AGLC: Nicholas Price v Prices Bakery Pty Ltd T/A Prices Bakery [2018] FWC 1964
Case: [2018] FWC 1964
Decision Date: 5 APRIL 2018

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Nicholas Price against Prices Bakery Pty Ltd, trading as Prices Bakery. Mr Price sought to address alleged contraventions of the Fair Work Act 2009, specifically related to his dismissal. The Commission was required to determine whether to extend the time for lodging the application, given that it was filed beyond the statutory period. The primary concern was whether the delay in filing the application was justified under the relevant provisions of the Fair Work Act.

The central legal issue before the Commission was whether the delay in filing the application to address the alleged contraventions was reasonable and justified under section 539 of the Fair Work Act. This section allows for the extension of time if the Commission is satisfied that the delay was reasonable. The Commission had to consider the reasons for the delay and whether any exceptional circumstances existed that warranted an extension. The Commission also needed to assess whether the delay had caused any prejudice to the respondent, Prices Bakery.

In deciding the matter, the Commission examined the reasons provided by Mr Price for the delay in filing the application. The Commission found that Mr Price had not acted promptly in lodging the application due to a combination of factors, including his emotional state following the dismissal and initial confusion about the processes involved. However, the Commission noted that the delay was not excessively long and that Mr Price had acted reasonably once he understood the need to seek legal redress. The Commission also considered that the delay had not caused any significant prejudice to Prices Bakery, as the core facts and evidence remained available and unimpaired. Based on these findings, the Commission decided that the delay was reasonable and granted the extension, allowing the application to proceed.

The Fair Work Commission, therefore, ruled in favour of extending the time for Mr Price to lodge his application. The Commission found that the delay was reasonable and did not result in significant prejudice to Prices Bakery. The application was thus permitted to proceed, enabling Mr Price to pursue his claims regarding the alleged contraventions of the Fair Work Act related to his dismissal.

Orders