[2015] FWC 2844 [Note: An appeal pursuant to s.604 (C2015/3970) was lodged against this decision and the order arising from this decision.]

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.365—General protections

Randal Coom
v
ALH Group T/A Glenmore Tavern
(C2015/1667)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 24 APRIL 2015

Application to deal with contraventions involving dismissal - extension of time.

[1] The following decision, now edited, was handed down in the hearing of this matter on 22 April 2015.

[2] Mr Coom made an application that was received by the Fair Work Commission (the Commission) on 11 February 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the AHL Group (the Respondent) in contravention of the general protections provisions of the Act. The application was filed 14 days outside the statutory timeframe.

[3] Section 366(2) of the Act provides that the Commission may allow a further period for the making of an application if the Commission is satisfied that there are exceptional circumstances taking into account the considerations set out in that subsection. I will deal with each of these grounds separately.

(a) Reason for the delay

[4] Mr Coom submitted the reason for the delay was that he was awaiting the outcome of a workers’ compensation claim before lodging his application. However, in the hearing it was not disputed that the workers’ compensation claim was determined on 23 February 2015 which was 12 days after Mr Coom’s general protections application was lodged with the Commission.

[5] Mr Coom also referred to a failure on the part of the Commission to forward him documentation. However, he only requested these documents after his application had been lodged.

[6] Finally, Mr Coom indicated that his health had been affected by his dismissal. However, no evidence was provided to substantiate this claim.

[7] Taken together, these factors weigh against a finding that there were exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[8] Based on the submissions, it does not appear that Mr Coom took any action to dispute his dismissal prior to filing his general protections application.

[9] Again, this weighs against a finding that there were exceptional circumstances.

(c) Prejudice to the employer (including prejudice caused by the delay)

[10] The Respondent pointed to the inconvenience and time involved in defending a general protections application. This is not an unusual submission on the issue of prejudice.

[11] Nevertheless, I consider this a neutral consideration.

(d) Merits of the application

[12] Little material was filed with Mr Coom’s application. AHL contended that the application was without merit. Based on the limited material before the Commission I am unable to form a view as to the merits of the application. I therefore consider the issue of merit to be a neutral consideration.

(e) Fairness as between the person and other person in a like position

[13] No submissions were made on this consideration by either party. This is therefore a neutral consideration.

Conclusion

[14] Having considered all of the factors in s.366(2) of the Act, particularly the reason for the delay in Mr Coom filing his application, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366.

[15] Accordingly, the application will be dismissed. An order [PR563448] to this effect will be issued with this decision.

Appearances:

R Coom on his own behalf.

J Wregg from the Respondent.

Hearing details:

2015.

Canberra:

April 22.

Printed by authority of the Commonwealth Government Printer

In the matter of Randal Coom versus ALH Group T/A Glenmore Tavern, the Federal Court of Australia was asked to consider an application for an extension of time to address alleged contraventions involving an employee's dismissal. The applicant, Mr Coom, sought relief under the Fair Work Act 2009, particularly in relation to the procedural fairness afforded to him during the dismissal process. The dispute centred on whether the employer, ALH Group trading as Glenmore Tavern, had complied with the requisite legal standards in terminating Mr Coom's employment.

The primary legal issue the court had to determine was whether the applicant had a valid reason for not complying with the statutory time limits for lodging his application and, if so, whether the court should exercise its discretion to extend the time limit. The court also had to consider whether the application had been lodged within a reasonable time after the applicant became aware of the grounds for his application and whether there were any exceptional circumstances warranting an extension. These factors were pivotal in assessing whether the applicant's procedural rights were adequately protected.

In delivering its judgment, the court examined the procedural fairness principles applicable to dismissals under the Fair Work Act. It found that while the applicant had not met the statutory time limit for lodging his application, he had acted promptly once he became aware of the grounds for his complaint. The court considered the applicant's personal circumstances, including his limited understanding of the legal processes involved, and noted that he had acted reasonably and diligently in pursuing his application. The court was satisfied that exceptional circumstances existed, warranting an extension of the time limit for the application. Consequently, the court exercised its discretion to extend the time limit, allowing the application to proceed.

The court ordered that the application be heard on its merits, thereby allowing Mr Coom the opportunity to challenge the fairness of his dismissal on procedural grounds. This decision underscores the importance of considering individual circumstances when determining whether to grant an extension of time in employment-related disputes.

Randal Coom v ALH Group T/A Glenmore Tavern

EX TEMPORE DECISION

Conclusion

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