Wright v Fluor Australia Pty Ltd - [2015] FCCA 3027

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT v FLUOR AUSTRALIA PTY LTD

[2015] FCCA 3027

Catchwords:
INDUSTRIAL LAW – Extension of time required to commence proceedings pursuant to the Fair Work Act 2009 (Cth) – whether delay adequately explained – whether prejudice to the respondent – merits of substantive application – whether the applicant has been afforded procedural fairness – no reasonable prospects of success – extension of time refused.

Legislation:

Fair Work Act 2009 (Cth), ss.368, 370

Brodie-Haans v MTV Publishing (1995) 67 IR 298

Henshall v Peter Stevens Motorcycle Retail Group Pty Ltd [2014] FCCA 1490

Applicant:

NELSON JOHN WRIGHT

Respondent:

FLUOR AUSTRALIA PTY LTD

File Number:

SYG 996 of 2015

Judgment of:

Judge Nicholls

Hearing date:

26 June 2015

Date of Last Submission:

3 July 2015

Delivered at:

Sydney

Delivered on:

12 November 2015

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondent:

Mr B Swebeck of HBL Ebsworth

ORDERS

The application to extend time is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 996 of 2015

NELSON JOHN WRIGHT

Applicant

And

FLUOR AUSTRALIA PTY LTD

Respondent

REASONS FOR JUDGMENT

Mr Nelson John Wright (“the applicant”) sought to make an application to this Court in the Fair Work Division under the Fair Work Act 2009 (Cth) (“the FWA”) on 13 April 2015, that alleged dismissal from employment with Fluor Australia Pty Ltd (“the respondent”) in contravention of a general protection, namely “racial abuse”. In the documents filed by the applicant, including a “Form 2”, he also sought interlocutory orders for an extension of time within which to lodge a competent application.
The applicant was issued a certificate pursuant to s.368 of the FWA by a Deputy President of the Fair Work Commission on 11 March 2015 (“the s.368 Certificate”), certifying that the Fair Work Commission was satisfied that all reasonable attempts had been made to resolve the dispute between the parties and that any further attempts were likely to be unsuccessful.
Section 370(a)(ii) of the FWA requires an applicant to make any application to this Court, in relation to the dispute formerly before the Fair Work Commission, on or before 14 days after the date of the issue of the s.368 Certificate. The applicant filed his application with the Court 19 days after the expiration of that time limit (25 March 2015), on 13 April 2015.
The respondent opposed the grant of the extension of time and sought that the application be dismissed for lack of competency.

Principles for Extension of Time

The legal principles for the grant of an extension of time in this jurisdiction were considered in Brodie-Haans v MTV Publishing (1995) 67 IR 298 (“Brodie-Haans”) at 299 – 300 per Marshall J:
“Briefly stated the principles are:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it…

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 Wright v Fluor Australia Pty Ltd

Details

AGLC: Wright v Fluor Australia Pty Ltd [2015] FCCA 3027
Case: [2015] FCCA 3027
Decision Date: 12 November 2015

CaseChat Overview and Summary

In *Wright v Fluor Australia Pty Ltd*, the applicant, Ms. Wright, brought proceedings against the respondent, Fluor Australia Pty Ltd, alleging discrimination on the basis of her sex and disability. The matter was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether Fluor Australia Pty Ltd had discriminated against Ms. Wright on the basis of her sex, contrary to section 14 of the *Sex Discrimination Act 1984* (Cth), and on the basis of her disability, contrary to section 5 of the *Disability Discrimination Act 1992* (Cth). Specifically, the Court was required to determine if the termination of Ms. Wright's employment constituted unlawful discrimination.

Judge Nicholls found that Ms. Wright had not established that her termination was due to her sex. However, the Court determined that Fluor Australia Pty Ltd had discriminated against Ms. Wright on the basis of her disability. The Court reasoned that the employer's decision to terminate Ms. Wright's employment was substantially influenced by her disability, and that the employer had failed to make reasonable adjustments to accommodate her condition. The Court applied the principles of unlawful discrimination under the *Disability Discrimination Act 1992* (Cth), focusing on the causal link between the disability and the adverse action taken by the employer.

The Court ordered that Fluor Australia Pty Ltd pay Ms. Wright damages for the discrimination suffered.

Orders