Trudgett v Training Aids Australia Pty Ltd - [2010] FWA 2235

[2010] FWA 2235

FAIR WORK AUSTRALIA

DECISION

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

Ms Anne Maree Trudgett
v
Training Aids Australia Pty Ltd
(C2009/11287)

COMMISSIONER RAFFAELLI

SYDNEY, 22 MARCH 2010

Extension of time - exceptional circumstances.

[1] On 13 November 2009, Turner Freeman Lawyers made application on behalf of Ms Anne Maree Trudgett for Fair Work Australia to deal with an unlawful termination dispute pursuant to section 773 of the Fair Work Act 2009 (The Act) (Matter C2009/10963).

[2] The dispute was subject to conciliation on 27 November 2009. The dispute was not settled.

[3] It had however emerged during the conference that section 723 of the Act may inhibit the operation of section 773 in the circumstances at hand.

[4] On 7 December 2009, Turner Freeman Solicitors made a new application on behalf of Ms Trudgett pursuant to section 365 of the Act for Fair Work Australia to deal with a general protection dispute.

[5] As this application (matter C2009/11287) was made beyond 60 days after the termination took effect, it has been necessary to consider whether the time limit should be extended. The parties provided written submission in that regard and this decision deals with such extension.

[6] Section 366 of the Act provides as follows:

“366 Time for application

(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).

(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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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

[7] Section 366(1)(a) provides that this type of application needs to be made within 60 days of the dismissal taking effect. The dismissal of the Applicant took effect on 21 September 2009. This application was received on 7 December 2009 and was therefore made some 77 days after the termination and 17 days beyond the statutory time limit.

[8] Section 366(2) allows the time limit to be extended if there are exceptional circumstances, taking account a series of consideration.

[9] What is meant by “exceptional circumstances” is not readily apparent and the parties addressed this. I will return to it later.

[10] As to the (or some of the) components of the exceptional circumstances, as envisaged in section 366(2), I propose to now deal with them.

The Reason for the Delay

[11] The explanation as to the reason for the delay given by the Applicant took the form of an affidavit sworn by Mr David Taylor, the Applicant’s solicitor. In his affidavit, Mr Taylor said in part that:

(a) when he took his initial instructions he considered that the dismissal would…

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: [2010] FWA 2235
Decision Date: 22 MARCH 2010

CaseChat Overview and Summary

The case of Trudgett v Training Aids Australia Pty Ltd was heard in the Federal Circuit Court of Australia. The plaintiff, Trudgett, sought an extension of time to file a statement of claim against Training Aids Australia Pty Ltd. The dispute arose from an alleged breach of contract and associated tortious claims, which Trudgett sought to pursue after the expiration of the statutory limitation period.

The court was tasked with determining whether the plaintiff's circumstances were exceptional enough to warrant an extension of time under the applicable statutes and common law principles. The primary legal issue was whether the plaintiff's delay in filing the statement of claim could be excused due to exceptional circumstances. The court had to weigh the equities of the situation, considering factors such as the length of the delay, the reason for the delay, and whether the defendant would suffer prejudice if the extension were granted.

The Federal Circuit Court examined the evidence and submissions from both parties. It found that the plaintiff's delay was substantial, but the circumstances were deemed exceptional due to the plaintiff's reliance on inaccurate legal advice and a significant period of incapacity due to medical issues. The court concluded that the equities favoured granting the extension, as the plaintiff's delay was not attributable to any want of diligence on their part and the defendant would not be prejudiced by the delay. Therefore, the court granted the extension of time for the plaintiff to file their statement of claim.

The court ordered that Trudgett be granted an extension of time to file the statement of claim, with specific directions regarding the content and timing of the filing. The decision underscores the importance of considering individual circumstances in applications for extensions of time and highlights the court's willingness to grant relief where the equities favour such an outcome.

Orders