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Pitrau v Barrick Mining Services Pty Ltd

Pitrau v Barrick Mining Services Pty Ltd

Case [2012] FWA 8363 27 September 2012

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Civil Litigation & Procedure

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[2012] FWA 8363

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Vanessa Pitrau
v
Barrick Mining Services Pty Ltd
(C2012/3295)

DEPUTY PRESIDENT MCCARTHY

PERTH, 27 SEPTEMBER 2012

Section 365 application lodged after time allowed - further time allowed.

Background

[1] This matter concerns an application lodged by Ms Vanessa Pitrau (the Applicant) for Fair Work Australia (FWA) to deal with a General Protections Dispute (the Application) pursuant to s.365 of the Fair Work Act 2009 (the FW Act). The application was lodged on 30 March 2012. The Applicant asserts that Barrick Mining Services Pty Ltd (the Respondent) terminated the Applicant’s employment in contravention of s.352 of the FW Act. The termination took effect on 2 December 2010. The Application is therefore outside the 60 day time limit prescribed by s.366(1)(a) of the FW Act by a very lengthy period.

[2] The Applicant had previously erroneously lodged an application pursuant to s.773 of the FW Act (the s.773 Application). The s.773 Application was lodged within the allowable time provided. A conciliation conference was held on 28 February 2011. A certificate was issued on 9 March 2011. On 23 March 2011, the Applicant subsequently made application for the matter to be dealt with by the Federal Magistrates Court of Australia.

[3] On 23 March 2012, the Federal Magistrates Court issued a decision dismissing the s.773 Application. 1 The Magistrate found that the unlawful termination application which was made under s.773 of the FW Act was therefore never an application which Ms Pitrau was able to make. Essentially, this finding was based on the fact that the Respondent was a National System Employer, therefore there could be no s.773 application that was capable of being made. The Magistrate also decided that the application could not be amended because “there is not an efficacious proceeding on foot that the proposed amendment can enliven; and even if Ms Pitrau’s application were to be amended as sought, it would be an exercise in futility, for without a Section 369 Certificate the Court would have no jurisdiction to hear the amended application”.2

[4] As a consequence of the Application being lodged outside the 60 time limit, the Applicant seeks FWA to allow a further period. The Respondent objects to a further period being allowed.

[5] The Applicant was represented by Mr R Hooker of Counsel, instructed by Squire Sanders. The Respondent was represented by Ms K Reid of Allion Legal.

The Legislation

[6] The FW Act provides that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1 General Protections, then that person may apply to FWA for FWA to deal with the dispute. 3 Such an application must be made within 60 days after the dismissal took effect or within such further period as FWA allows.4

[7] FWA may allow a period longer than 60 days if FWA is satisfied that there are exceptional circumstances. 5 In considering whether it is satisfied that there are…

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 Pitrau v Barrick Mining Services Pty Ltd

Details

AGLC: Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363
Case: [2012] FWA 8363
Decision Date: 27 SEPTEMBER 2012

CaseChat Overview and Summary

In Pitrau v Barrick Mining Services Pty Ltd, the matter before the court involved a Section 365 application lodged by the plaintiff, Pitrau, after the time allowed under the applicable rules. The application sought to set aside an order that had been made in the proceedings. The defendant, Barrick Mining Services Pty Ltd, opposed the application, arguing that it should be dismissed due to the lateness of the application. The court was required to determine whether the application was time-barred and, if not, whether it should be allowed.

The central legal issue before the court was whether the late filing of the Section 365 application should preclude the court from considering it, given the strict time limits imposed by the rules. The court had to balance the procedural rules regarding time limits against the potential injustice of denying relief in a case where the delay was not due to any fault of the applicant. The court needed to consider the principles of fairness and the objectives of the procedural rules in making its decision.

The court held that while the application was indeed filed beyond the allowed time, the court had discretion to extend the time if it was satisfied that the delay was not due to any fault of the applicant and that there was a sufficient reason for the delay. The court found that the delay in this case was not attributable to any fault of Pitrau and that there were mitigating circumstances that warranted an extension of time. Consequently, the court allowed the application, setting aside the earlier order. The court emphasised the importance of considering the broader objectives of justice and fairness in procedural matters.

In conclusion, the court ordered that Pitrau's Section 365 application be allowed, and the earlier order was set aside. The court granted the relief sought by Pitrau, highlighting the discretionary power of the court to extend time limits where there is a justifiable reason for the delay and no fault on the part of the applicant.

Orders