Peter Nuessler v Australian Lamb

[2021] FWC 3223

[2021] FWC 3223

FAIR WORK COMMISSION

DECISION

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

Peter Nuessler
v
Australian Lamb
(C2021/1288)

DEPUTY PRESIDENT LAKE BRISBANE, 3 JUNE 2021

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

[1] Peter Nuessler (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to the termination of his employment by Australian Lamb(the Respondent). That application was first lodged with the Commission on 9 March 2021, however it was incomplete. A complete application was formally lodged on 10 March 2021.

[2] Further to my ex tempore decision recorded in the transcript of today’s hearing, I have summarised my findings as follows.

[3] The Applicant began his employment with the Respondent on 11 January 2021. It is uncontentious that the Respondent terminated the Applicant’s employment ten days later on 21 January 2021.

[4] The Applicant lodged his application on 10 March 2021. He accepts that his application was made some 25 days outside of the 21 days required under s.366(1) of the Act.

[5] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.

[6] I considered each of the factors set out in s.366(2) of the Act and the often-quoted authorities which indicate that test of ‘exceptional circumstances’ establishes a high hurdle for an applicant, in light of the evidence and submissions provided in this matter. 1

[7] While I accept the Applicant had some difficulties navigating the application process, based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

[8] Having regard to all the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[9] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Eg, Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].