DECISION

Fair Work Act 2009
s.365—General protections

Stephen Maxwell
v
Realestate.com.au Pty Ltd
(C2019/7279)

DEPUTY PRESIDENT CROSS

SYDNEY, 14 FEBRUARY 2020

Application to deal with contraventions involving dismissal - jurisdictional objection - consideration of extension of time - application dismissed.

[1] On 27 November 2019 Mr Stephen Maxwell (the Applicant) lodged a Form F8 general protections application (the Application) involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) with the Fair Work Commission (the Commission). The Application alleges the Applicant’s employment with Realestate.com.au Pty Ltd (the Respondent) was terminated on 16 September 2019, and that the termination took effect on 31 October 2019.

[2] General protections applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Commission allows. As the alleged dismissal took effect on 31 October 2019, the Application should have been lodged by no later than 21 November 2019. The Application was therefore six days late.

[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[4] As the Application was lodged outside the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a “further period” should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] On 19 December 2019, I convened a directions hearing by telephone to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The parties also agreed the Application would be determined upon the materials filed.

[6] On 19 December 2019 I issued written Directions as follows:

“1. The Applicant (Stephen Maxwell) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 16 January 2020.

2. The Respondent (Realestate.com.au Pty Ltd) are directed to file with the Fair Work Commission, and serve on…

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 807
Decision Date: 14 FEBRUARY 2020

CaseChat Overview and Summary

The case before the court involved Stephen Maxwell, an applicant, and Realestate.com.au Pty Ltd, the respondent. The applicant sought relief related to alleged contraventions involving dismissal. The Federal Circuit and Family Court of Australia was tasked with resolving the matter. The court's role was to determine whether it had jurisdiction to hear the application and whether the applicant's procedural errors warranted an extension of time for lodging the application.

The legal issues before the court included the jurisdictional objection raised by the respondent, which questioned whether the court had the authority to hear the application. Additionally, the court needed to consider whether the procedural errors made by the applicant, which involved missing a filing deadline, justified an extension of time. The court was also required to assess the merits of the applicant's case, including whether there were any valid grounds for the relief sought regarding the alleged contraventions.

In its decision, the court addressed the jurisdictional objection by examining the statutory provisions and case law to determine its authority to hear the application. The court concluded that it had the necessary jurisdiction to entertain the matter. Regarding the extension of time, the court found that the procedural errors were not minor and did not warrant an extension. The court also considered the merits of the case but found that the application did not demonstrate a valid basis for the relief sought. Consequently, the court dismissed the application, finding that the applicant had not overcome the jurisdictional and procedural hurdles.

The final orders of the court were that the application to deal with the alleged contraventions involving dismissal was dismissed, and no extension of time was granted for the lodging of the application. The court's decision underscored the importance of adhering to procedural requirements and highlighted the threshold jurisdictional and procedural issues that can affect the outcome of an application.

Orders