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Scott v Steritech Pty Ltd t/a Steritech

Scott v Steritech Pty Ltd t/a Steritech

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Case Copied 10 May 2019 45 min read

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[2019] FWC 2970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 365—General protections

Michael Scott
v
Steritech Pty Ltd t/a Steritech
(C2018/4785)

DEPUTY PRESIDENT SAMS

SYDNEY, 10 MAY 2019

Application to deal with contraventions involving dismissal – dismissal of longstanding employee for reasons of redundancy – employee claims he was dismissed due to illness and his absences – application lodged ‘out of time’ by two days – whether ‘exceptional circumstances’ exist to grant an extension of time to lodge the application – delay caused by mental state of employee and representative error – ‘exceptional circumstances’ established – extension of time granted – application referred to Practice Leader for allocation to a Member.

INTRODUCTION

[1] On 30 August 2018, Mr Michael Scott, filed an application, pursuant to s 365 of the Fair Work Act 2009 (the ‘Act’) seeking to have the Fair Work Commission (the ‘Commission’) deal with a General Protections (‘GP’) application involving a dismissal. Mr Scott was employed by Steritech Pty Ltd (‘Steritech’ or the ‘respondent’) for a period of over 15 years. The respondent is engaged in the sterilisation and fumigation industry. It has 62 employees nationally, 12 of whom are located in Queensland. Mr Scott was employed as its Queensland Operations Supervisor at its Narangba site, until his employment was terminated on 7 August 2018 for reasons of redundancy. It was the respondent’s position that as a result of a business review, two positions were made redundant, one of which being Mr Scott’s Supervisor position. Mr Scott disputes his redundancy and claims he was neither warned, nor consulted about his alleged redundancy. His originating application asserts that he was dismissed because of his temporary absence due to illness, in breach of s 352 of the Act. Unsurprisingly, Steritech strongly rejects this assertion and maintains his dismissal was a consequence of genuine redundancy.

[2] It is common ground that Mr Scott’s GP application was lodged out of time, being 2 days outside the 21 day time limitation set out in s 366(1) of the Act. Mr Scott’s originating application expressly seeks an order from the Commission that his application’s lodgement time be extended due to ‘exceptional circumstances’, pursuant to s 366(2) of the Act. The respondent opposes an extension of time being granted by the Commission.

[3] On 18 September 2018, the respondent advised Deputy President Kovacic’s Chambers that it would not consent to a s 368 conference until the ‘out of time’ issue was determined. It was agreed the matter could be determined ‘on the papers’. However, when the matter was remitted to me, I formed the view that a hearing was necessary in order to resolve a number of evidentiary conflicts. Therefore, I convened a phone directions conference with the parties, on 3 October 2018, which was subsequently relisted due to unavailability of the respondent’s Queensland General Manager and Mr Scott’s hospitalisation. Directions were issued on 5 November 2018 for a hearing of the ‘out of time’ issue on 14 February 2019. Accordingly, this decision…

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: [2019] FWC 2970
Decision Date: 10 MAY 2019

CaseChat Overview and Summary

The case of Scott v Steritech Pty Ltd t/a Steritech involved a longstanding employee who was dismissed on grounds of redundancy. The employee, Scott, contested the dismissal, alleging that he was actually dismissed due to his illness and associated absences from work. The matter was brought before the Fair Work Commission, which had to determine whether to grant an extension of time for the lodging of the application, as it was submitted two days beyond the statutory deadline. The application for an extension was based on the employee’s mental state and an error made by his representative.

The legal issues at hand were whether the delay in lodging the application could be excused due to exceptional circumstances and whether the Commission had the discretion to grant an extension of time. The central question was whether the reasons provided for the delay were compelling enough to warrant an exception to the usual rules regarding timeliness in lodging applications. The Commission had to consider the employee's mental state and the representative's error in the context of the statutory provisions governing such applications.

In delivering its decision, the Commission noted that the employee had been experiencing mental health issues, which had contributed to the delay. Furthermore, the representative had made an error in calculating the time within which the application should have been lodged. The Commission concluded that these factors constituted exceptional circumstances, justifying an extension of time. The Commission exercised its discretion under the relevant legislation to grant the extension and referred the matter to the Practice Leader for allocation to a Member for further consideration of the substantive application.

The orders made by the Commission included granting an extension of time for the lodging of the application, acknowledging the existence of exceptional circumstances, and referring the substantive application to a Member for determination. This decision underscores the importance of considering individual circumstances when assessing applications for extensions in employment-related disputes.

Orders