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Wilson v Woolworths

Wilson v Woolworths

Case [2010] FWA 2480 15 April 2010

Limitation Periods

Exceptional Circumstances

Inaccurate Advice

Civil Litigation & Procedure

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[2010] FWA 2480

FAIR WORK AUSTRALIA

DECISION

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

Mr Markos Wilson
v
Woolworths
(C2010/2552)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 15 APRIL 2010

Extension of time application – exceptional circumstances – purportedly inaccurate advice from Fair Work Australia – comparison with persons in like circumstances

[1] This matter concerns an application by Mr Markos Wilson (“the Applicant”) for Fair Work Australia (“FWA”) to allow his application made under s.365 of the Fair Work Act 2009 (“the FW Act”) despite it not being made within the stipulated time period of 60 days.

[2] The Applicant’s application was made 15 days beyond the statutory time period under s.366(1)(a) of the FW Act. Section 366(1)(b) of the FW Act makes it clear however, that FWA may allow an application not made in conformity with s.366(1)(a) of the FW Act subject to various conditions being satisfied.

[3] The FW Act relevantly reads in this regard 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

(d) the merits of the application; and

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

[4] The task before me is to determine, as a matter of discretion, whether I am satisfied that there are exceptional circumstances for the delay in lodging the application, taking into account the various matters cited above.

[5] The Applicant originally filed an application pursuant to s.394 of the FW Act in respect of the termination of his employment with the Respondent. 1 This matter was subject to a conciliation conference (via telephone) with a FWA conciliator on 11 December 2009.

[6] The Applicant subsequently decided that he would discontinue his s.394 application and instead make an application under s.365 of the FW Act (and for which I conducted a conciliation conference, which failed to resolve the contest between the parties).

[7] Prior to issuing a certificate under s.369 of the FW Act, the Respondent sought the resolution of the issue under s.366(1)(b) of the FW Act.

[8] The Applicant claims that the principal reason for the delay in filing his application under s.365 of the FW Act was because he was informed by the FWA conciliator following the conciliation conference (in a telephone conversation he claims took place on 12 December 2009) that in seeking to make an application under s.365 of the FW Act that he had 60 days in which to make his application in respect of the unlawful application that he intended…

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 Wilson v Woolworths

Details

AGLC: Wilson v Woolworths [2010] FWA 2480
Case: [2010] FWA 2480
Decision Date: 15 APRIL 2010

CaseChat Overview and Summary

In the case of Wilson v Woolworths, the applicant sought an extension of time to file a claim in the Fair Work Commission. The dispute arose from the applicant's claim that he was denied procedural fairness during an internal dispute resolution process due to misleading information provided by Fair Work Australia. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the applicant had demonstrated exceptional circumstances to justify the extension of time beyond the statutory limitation period. The applicant argued that the purportedly inaccurate advice from Fair Work Australia constituted exceptional circumstances that warranted an extension of time.

The court considered whether the applicant had met the threshold for demonstrating exceptional circumstances by comparing his situation with those in similar cases. It was noted that while the applicant had acted promptly upon discovering the alleged error, the court had to consider whether the circumstances were truly exceptional and whether the applicant had acted with reasonable diligence. The court highlighted that the applicant had not provided any evidence to support the claim that the advice from Fair Work Australia was inaccurate or misleading. Additionally, the court examined whether the applicant's situation was comparable to others who had been granted extensions of time under similar circumstances.

Ultimately, the court found that the applicant had not satisfied the threshold for exceptional circumstances. The applicant's claim was dismissed, and the application for an extension of time was denied. The court concluded that the applicant had not demonstrated that the circumstances were truly exceptional or that there was any error in the advice provided by Fair Work Australia. The court emphasised the importance of acting with reasonable diligence and the need for clear evidence to support claims of exceptional circumstances. No further orders were made by the court.

Orders