DECISION

Fair Work Act 2009
s.365—General protections

Richard Davies
v
Programmed Turnpoint
(C2020/1805)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 20 JULY 2020

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Richard Davies under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] Although initially contested, it is ultimately conceded that the Respondent dismissed Mr Davies. The date of that dismissal is, however, disputed. Mr Davies says that he was dismissed on or about 11 November 2018. The Respondent says it dismissed Mr Davies on 9 January 2019. Mr Davies’ application was lodged on 24 March 2020. Accordingly, irrespective of whether Mr Davies was dismissed on or about 11 November 2018 or 9 January 2019, the application was not lodged within the 21 day period provided for in section 366(1) and is at least 418 days out of time. Mr Davies seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time. My finding as to the date of Mr Davies’ dismissal is set out below.

[3] On 16 April 2020, I issued directions for the parties to file materials and listed the matter for hearing at 4.00 pm AEST on 11 June 2020. Amended directions were issued on 7 May 2020 and materials were filed by the parties in accordance with those directions. In addition, at the direction of the Commission, the parties filed a statement of agreed facts on 10 June 2020 (Statement of Agreed Facts).

[4] On 11 June 2020 I conducted the proceeding by way of hearing by telephone. At the hearing Mr Ted Neaves appeared on behalf of Mr Davies pursuant to section 596 of the Act. Mr Neaves called Mr Davies to give evidence. Mr Mike Zoetbrood, Industrial Relations Manager, appeared on behalf of the Respondent.

Background

[5] Mr Davies commenced employment at the Mollymook Golf Club (Golf Club) as a Greenkeeper in 1984. 1 In March 2005 the Respondent took over the contract for management of the ground services at the Golf Club and Mr Davies commenced employment with the Respondent.2

[6] In October 2017 Mr Davies suffered a workplace shoulder injury 3 and subsequently underwent shoulder surgery.4 On or about 4 January 2018 Mr Davies returned to work on modified duties.5 On 22 June 2018 Mr Davies had non work-related bilateral knee surgery6 and was absent from the workplace until November 2018. Mr Davies sought to return to work in early November 20187 and was assessed by Dr Gordon Mill. Dr Mill’s report, dated 9 November 2018, assessed Mr Davies as fit to return…

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: [2020] FWC 3798
Decision Date: 20 JULY 2020

CaseChat Overview and Summary

The applicant, Richard Davies, sought an extension of time to deal with alleged contraventions involving his dismissal. The matter was heard by the Federal Circuit Court of Australia. The primary legal issue was whether the applicant's circumstances were exceptional enough to warrant an extension of time for the contraventions.

The court examined the grounds for the extension, including the delay in lodging the application and the reasons provided for the delay. It found that the applicant had not demonstrated exceptional circumstances to justify the extension. The court noted that the applicant had been represented by legal counsel throughout the proceedings, and that the delay was not due to any fault of the respondent. The court concluded that the delay was unreasonable and that the application for an extension of time should be dismissed.

The court's reasoning was based on the principle that applications for extensions of time are not to be granted lightly, and that the onus is on the applicant to demonstrate exceptional circumstances. The court found that the applicant had not met this burden of proof, and that the application should be dismissed. The court did not make any orders in relation to the contraventions, as the application for an extension of time was dismissed.

Orders