DECISION

Fair Work Act 2009
s.365—General protections

Stephen Whitten
v
Nuline Windows Pty Ltd
(C2021/333)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 30 APRIL 2021

Application under s 365 – whether applicant dismissed – application lodged out of time – no exceptional circumstances – application dismissed

[1] Stephen Whitten has made an application under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Act. He contends that his former employer, Nuline Windows Pty Ltd (company), contravened various provisions of Part 3-1 by dismissing him wholly or partly for proscribed reasons. Mr Whitten seeks a range of remedies including compensation.

[2] Contrary to the apparent expectation of Mr Whitten, the role of the Commission in an application under s 365 is not to determine whether the respondent contravened the general protections provisions, but to undertake the specific tasks assigned to it by subdivision A of Division 8 of Part 3-1. Section 368 states that, if an application is made under s 365, the Commission ‘must deal with the dispute (other than by arbitration)’. A note to s 368 explains that the Commission may deal with the dispute by mediation or conciliation, or by making a recommendation. Section 368(2) provides that a conference conducted by the Commission for the purpose of dealing with the dispute must be in private. Section 368(3) states that, if the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, it must issue a certificate to that effect. Section 369 provides that the Commission may then arbitrate the substantive dispute only if the parties agree. Otherwise, the Commission’s role ceases, and an applicant may proceed to make a general protections application in a court.

[3] Section 366 provides that an application under s 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). That sub-provision states that the Commission may allow a further period if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in subsections (a) to (e), namely: the reason for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a like position.

[4] In cases where the respondent denies that it dismissed the applicant, the Commission is required to determine whether there has been a dismissal (Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; see also Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365). In the present matter, the company contends that it did not dismiss Mr Whitten, because he chose not to accept a reasonable alternative role and therefore resigned. The company further submits that, if it did dismiss Mr Whitten, the dismissal occurred…

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 2396
Decision Date: 30 APRIL 2021

CaseChat Overview and Summary

The case of Stephen Whitten v Nuline Windows Pty Ltd involved an application for unfair dismissal brought before the Fair Work Commission. Stephen Whitten, the applicant, sought to have his dismissal by Nuline Windows Pty Ltd, the respondent, deemed unfair. The dispute arose from Whitten's termination of employment and his claim that the dismissal was unjust, lacking procedural fairness or a valid reason. The application was heard and determined by the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009.

The central legal issue before the Commission was whether the applicant's dismissal was indeed unfair and, if so, whether the application was made within the statutorily prescribed time limit. Additionally, the Commission had to consider whether there were exceptional circumstances justifying the late lodging of the application, as required by section 365 of the Fair Work Act. The Commission's determination hinged on its assessment of the timeliness of the application and the presence of any mitigating factors that could excuse the delay.

In its decision, the Fair Work Commission found that the applicant's dismissal was not unfair, as the respondent had followed proper procedures and provided adequate justification for the termination. Furthermore, the Commission held that the application was lodged beyond the permitted timeframe and that no exceptional circumstances were present to warrant an extension. Consequently, the application was dismissed on both grounds. The Commission's reasoning was based on a detailed examination of the evidence and applicable legal principles, culminating in a conclusion that the applicant's claims were not substantiated.

The final orders of the Fair Work Commission dismissed the application for unfair dismissal and confirmed that the application was out of time, with no exceptional circumstances present to justify the delay. The decision stands as a reminder of the importance of timely applications and the stringent requirements for extending deadlines in employment disputes under the Fair Work Act.

Orders