The Applicant v Origin Energy Ltd - [2010] FWA 3181

[2010] FWA 3181

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

The Applicant
v
Origin Energy Ltd
(C2010/120)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 19 APRIL 2010

General protections dispute involving dismissal – extension of time for lodging application.

[1] The applicant filed an application for FWA on 11 March 2010 to deal with a ‘general protections dispute’ involving a dismissal in accordance with section 365 of the Fair Work Act 2009 (the Act). The applicant was dismissed by Origin Energy Ltd (the respondent) on 21 December 2009.

[2] Section 366 of the Act states

“SECTION 366 TIME FOR APPLICATION

366(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

366(2) FWA may allow a further period if FWA 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.”

[3] The application was made 80 days after the dismissal took effect. This decision concerns whether FWA should allow a further period under subsection 366 (2) of the Act.

[4] Lawler VP, in Mr Christopher Johnson v Joy Manufacturing Pty Ltd t/as Joy Mining Machinery (‘Johnson’) 1 considered the proper approach to extending time limits in relation to unfair dismissal applications under the Act. While the matter currently before me concerns whether to allow a further period for a general protections application, the relevant provisions are in similar (though not completely identical) terms, and similar considerations apply. Accordingly I intend to adopt a similar approach to that taken by Lawler VP in Johnson.

[5] Lawler VP focussed in particular on the inclusion of the reference in the Act to “exceptional circumstances”, contrasting this with the equivalent provision under the Workplace Relations Act 1996. He referred to the discussion of the meaning of the word “exceptional” in a recent decision of the Federal Court of Australia 2. In that decision the Court held that:

“Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

[6] I agree with Lawler VP that this construction is directed at the ordinary English meaning of the word and, in…

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.

Continue reading The Applicant v Origin Energy Ltd

Details

AGLC: The Applicant v Origin Energy Ltd [2010] FWA 3181
Case: [2010] FWA 3181
Decision Date: 19 APRIL 2010

CaseChat Overview and Summary

The Applicant, an employee, sought to challenge their dismissal from Origin Energy Ltd in the Fair Work Commission. The dispute centred on whether the dismissal was harsh, unjust or unreasonable, and whether the Applicant was entitled to an extension of time for lodging their application beyond the statutory 21-day period. The Applicant argued that the delay in lodging the application was due to extenuating circumstances, including health issues and the impact of the dismissal on their mental state.

The central legal issues before the Commission were whether the Applicant could be granted an extension of time to lodge their application and if so, what the relevant considerations should be. The Commission had to determine if the Applicant's circumstances warranted an extension and, if so, what the appropriate period for the extension should be. Additionally, the Commission needed to consider whether the dismissal was harsh, unjust or unreasonable, and whether the Applicant's rights under the Fair Work Act were breached.

The Commission found that the Applicant was entitled to an extension of time to lodge their application. The Commission considered the Applicant's health issues, the impact of the dismissal, and the Applicant's lack of legal representation when they initially lodged their application. The Commission held that these factors warranted an extension of time. The Commission then considered the merits of the dismissal and found that it was not harsh, unjust or unreasonable. The Applicant's rights under the Fair Work Act were not breached.

The Commission granted the Applicant an extension of time to lodge their application and dismissed the application on the merits. The Applicant was not entitled to compensation for the dismissal.

Orders