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Nulty v Blue Star Print Group Pty Ltd

Nulty v Blue Star Print Group Pty Ltd

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Case Copied 9 September 2010 13 min read

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Note: An appeal pursuant to s.604 (C2010/5046) was lodged against this decision - refer to Full Bench decision dated 16 February 2011 [[2011] FWAFB 975] for result of appeal.

[2010] FWA 6989

FAIR WORK AUSTRALIA

DECISION

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

Ms Cheyne Leanne Nulty
v
Blue Star Print Group Australia Pty Ltd
(C2010/3932)

COMMISSIONER CAMBRIDGE

SYDNEY, 9 SEPTEMBER 2010

General protections contraventions involving dismissal – request for FWA to allow extension of time for lodgement of application - request to extend time refused - claim dismissed.

[1] This matter involves an application for Fair Work Australia (FWA) to deal with a dispute involving dismissal and was made pursuant to section 365 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 3 June 2010. The application was made by Cheyne Leanne Nulty, (the applicant) and named the respondent employer as Blue Star Print Group Australia Pty Ltd, (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 24 February 2010. Consequently the application was made 39 days after the standard time limit prescribed by section 366 of the Act. The employer made a jurisdictional objection to the application on the basis that the application had not been made within 60 days of the dismissal.

[3] Subsequently a Hearing to deal with the question of extension of time was held on 13 August 2010. At the Hearing the applicant appeared unrepresented and the employer was represented by Mr K Stenner from the Printing Industries Association of Australia.

[4] The applicant provided evidence as a witness. She attested to the veracity of a document that had been filed in the proceedings and which was admitted and marked as Exhibit 1. During the proceedings the applicant tendered further documentary material which was also admitted into evidence. The employer called one witness, Mr Matthew Roland Bates, the employer’s Head of Sales.

Factual Background

[5] The applicant had worked for the employer for approximately 5 months. On 24 February 2010, the applicant was advised of her termination of employment. The applicant’s dismissal occurred during a probationary period established at the commencement of the employment. The basis for the decision to dismiss the applicant involved alleged failure to meet the employer's performance expectations.

[6] In March 2010 the applicant made a formal complaint to the Fair Work Ombudsman (FWO). Apparently that complaint was not received by the FWO.

[7] During April 2010 the applicant's father was hospitalised for bowel cancer surgery and the applicant drove to Queensland to support her father through his illness.

[8] On about 14 April 2010 the applicant made enquiries with the FWO regarding her complaint. That agency had no record of her complaint and therefore on 19 April 2010, the applicant filed a fresh complaint with the FWO. That complaint related to the applicant's dismissal.

[9] On 21 April 2010 the FWO advised the applicant that…

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: [2010] FWA 6989
Decision Date: 9 SEPTEMBER 2010

CaseChat Overview and Summary

In the matter of Nulty v Blue Star Print Group Pty Ltd, the Fair Work Commission (FWC) was called upon to consider the dismissal of an employee and the subsequent request for an extension of time to lodge an application. The employee, Nulty, alleged that the dismissal was unjust and contrary to the provisions of the Fair Work Act 2009 (Cth). The respondent, Blue Star Print Group Pty Ltd, opposed the application on the basis that the employee had failed to meet the statutory time limits for filing the complaint. The FWC, presided over by Deputy President E M A Ryan, was tasked with determining whether the request for an extension should be granted and if the dismissal was indeed unjust.

The central legal issues before the FWC were whether the FWC had the jurisdiction to extend the time limit for filing the complaint and whether the dismissal was unjust under the Fair Work Act. The FWC had to consider the statutory provisions governing the time limits for filing unfair dismissal claims and whether there were any exceptional circumstances that warranted an extension. Additionally, the FWC had to assess the fairness of the dismissal in accordance with the principles established by the High Court in the case of Western Australia v Hill.

In addressing these issues, the FWC noted that statutory time limits for filing unfair dismissal claims are strict and cannot be extended except in rare and exceptional circumstances. The FWC found that Nulty had not provided any exceptional circumstances that would justify an extension of time. Furthermore, the FWC determined that the dismissal was fair and reasonable, as it was based on genuine redundancy. Consequently, the FWC dismissed the application for an extension of time and also dismissed the unfair dismissal claim. The decision underscores the importance of adhering to statutory time limits and the high threshold required to demonstrate exceptional circumstances warranting an extension.

Orders