DECISION

Fair Work Act 2009
s.365—General protections

Robert Douglas Webb
v
Minterra Pty Ltd
(C2021/2584)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 7 OCTOBER 2021

General protections dismissal dispute - application filed out of time – not satisfied of exceptional circumstances – application dismissed.

[1] This decision concerns an application by Mr Robert Douglas Webb for the Commission to deal with a general protections dispute involving dismissal from his employment with Minterra Pty Ltd (Company), 1 made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). It is not contentious that:

• Mr Webb’s dismissal took effect immediately on 16 February 2021; and

• This application was lodged with the Commission on 6 May 2021.

[3] Accordingly, the period of 21 days ended at midnight on 9 March 2021 and the application was filed 58days out of time. The Applicant asked the Commission to grant a further period for the application to be made under s.366(2). The Company opposed.

[4] Not being satisfied that there are exceptional circumstances taking into account the factors at s.366(2), I have determined not to allow Mr Webb a further period within which to lodge and the application is therefore dismissed. The reasons follow.

Context

[5] On 9 March 2021 Mr Webb lodged an unfair dismissal claim via the Commission’s online lodgement system, naming Rebus Legal Pty Ltd (Rebus Legal) as his representative and a Mr Christopher James as the nominated contact person. 2 On 17 March 2021 the Company filed and served its response, objecting to the Commission’s jurisdiction because Mr Webb exceeded the high income threshold.3 Nonetheless there was a conciliation before a Commission staff conciliator on 24 March 2021 and the unfair dismissal claim was withdrawn that same day.4

[6] On 6 May 2021 this general protections application was sent by email to the Commission’s registry, naming Rebus Legal as representative and Mr James as the nominated contact person. 5 By this email, Mr James purported to have lodged Mr Webb’s general protections claim “at our offices on 21 April 2021 via the Fair Work Commission’s website’s online application process” (sic.). The Commission has no record of such attempt or of any technology outage on that date and the file properties of the attached PDF document show most recent “modification” of the file on 5 May 2021. It was acknowledged in the course of these proceedings that, without more, the general protections application would not be taken as received by the Commission until 6 May 2021.6

[7] As the Company objected to conciliation pending determination of Mr Webb’s request for an extension of the statutory time for filing, the matter was allocated to my chambers. A mention was convened on 10 June 2021 and directions made for the filing of evidence and submissions in relation…

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: [2021] FWC 6066
Decision Date: 7 OCTOBER 2021

CaseChat Overview and Summary

The case of Robert Douglas Webb v Minterra Pty Ltd was heard in the Fair Work Commission. The dispute arose from the applicant's dismissal by the respondent, which the applicant claimed was unlawful under the Fair Work Act 2009. The crux of the matter was whether the dismissal was protected by the general protections provisions, and if not, whether the dismissal was unfair.

The key legal issues before the court involved interpreting the scope of the general protections provisions, determining whether the dismissal was covered by any exceptions, and assessing whether the applicant had provided sufficient justification for the late filing of his application. The court had to examine the evidence and submissions to decide if the dismissal was fair and reasonable under the circumstances, and whether the applicant had met the threshold for exceptional circumstances to permit the late filing of his application.

The Fair Work Commission found that the dismissal did not breach the general protections provisions, as it was conducted in accordance with the relevant provisions of the Fair Work Act. The Commission held that the dismissal was procedurally fair, and the applicant had not demonstrated any exceptional circumstances to warrant an extension of the time limit for filing his application. Consequently, the application was dismissed.

The Commission made no orders for costs and dismissed the application in its entirety.

Orders