FWA 3939
REASONS FOR DECISION
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Gery Lane
Kangaroo Island Dive & Adventures Pty Ltd
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
ADELAIDE, 25 MAY 2010
Termination of employment – general protections claim – extension of time.
 These reasons for decision reflect a decision given in transcript at the conclusion of a hearing on 18 May 2010. They follow a request to this effect made by the respondent in this matter.
 My order of 18 May 2010 (PR997264) provided for an extension of time for the lodgment of the application under section 365 of the Fair Work Act 2009 (the Act).
 At the hearing on 18 May 2010 Mr Lane was represented by Mr Bourne of counsel and Kangaroo Island Dive and Adventures Pty Ltd (KIDA) was represented by its manager, Mr Snadden.
 The background to this application is particularly significant. On 30 March 2010 Mr Lane lodged an application pursuant to section 773 of the Act. In this application he asserted that his employment had been terminated on the basis of one or more of the grounds set out in section 772 of the Act. Pursuant to section 776, this application was the subject of a conference with me on 15 April 2010. At this conference, I advised both parties that I had some doubt about the extent to which the application could be pursued pursuant to section 773, on the basis that the respondent was a national system employer. Nevertheless, the parties agreed with me that the conference should continue and that, in the event that agreement was reached, Mr Lane's concerns could be resolved. Alternatively, if no agreement was reached, and a further application, pursuant to section 365 of the Act was made within a few days of that conference, the parties would regard the conference on 15 April 2010 as a conference for the purposes of section 368 of the Act.
 The conference on 15 April 2010 did not resolve the application. I note that Mr Lane has claims against the respondent with respect to the termination of his employment and also has claims on the basis that he considers he has been underpaid over the duration of his employment.
 At the conference on 15 April 2010 the parties noted that the termination of Mr Lane's employment occurred on 8 February 2010. Applications pursuant to section 773 and section 365 are required to be made within 60 days of the termination of employment unless Fair Work Australia extends that time limit. The 60 day time limit consequently expired on 9 April 2010. KIDA agrees that it did not oppose an extension of time on the basis that any section 365 application would be made on or before 19 or 20 April 2010.
 A Certificate pursuant to section 777 of the Act was issued on 23 April 2010.
 Mr Lane's second application, made pursuant to section 365 of the Act was lodged on 21 April 2010. A waiver for the filing of the application fee was issued on 29 April 2010, and the application was subsequently referred to me. On 30 April 2010 I issued directions through which I advised that whilst there was a prima facie position supporting the granting of an extension of time, advice of the respondent’s position in this respect was invited. On the same day, Mr Snadden of KIDA confirmed that the respondent objected to the granting of an extension of time.
 The extension of time issue was subsequently listed for hearing on 18 May 2010.
 At this hearing, both parties addressed the provisions of section 366 which state:
“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.”
 Mr Lane's position was that an extension of time is appropriate given the reason for the delay and the action he had already taken. The KIDA position was that the extension of time should be refused on the basis that Mr Lane had been given an opportunity to lodge this additional application by 19 or 20 April 2010 and had failed to do so or to outline a satisfactory reason for the subsequent delay. Further, KIDA argued that Mr Lane's application lacked any merit and that the granting of an extension of time would severely prejudice the respondent.
 My conclusion with respect to the extension of time issue was reached on the following bases.
The reason for the delay
 There are three components for the delay in the lodging of the application. The first reason for the delay, which explains the majority of the time from the termination of Mr Lane's employment, is that his initial application was made pursuant to section 773. Mr Lane’s advice was that he was advised in this respect by a community legal centre. This first application was made within time. I have concluded that this first application reflects an error in that section 773 is not available in this situation. Further, I have concluded that Mr Lane did not become aware of this until the conference on 15 April 2010. To the extent that this explains the subsequent delay in the lodgment of the second application, I consider it represents an acceptable reason for the delay.
 The second reason for the delay is the period from 15 April 2010 to either 19 or 20 April 2010, depending on the recollections of the parties to the 15 April 2010 conference. I have concluded that KIDA agreed not to oppose the granting of an extension in so far as it related to this period of time. I consider that there is an acceptable reason for an extension of time over these days in that Mr Lane should reasonably be allowed an opportunity to access legal advice before filing his second application.
 The third reason for the delay represents the period from 19 or 20 April 2010 to 21 April 2010, when the application was lodged. I consider that there is a reasonable explanation for this one-day period. This also relates to delays in the provision of legal advice to Mr Lane within a very short period of time.
Action taken to dispute the dismissal
 I am satisfied that Mr Lane's first application, together with the action he has taken to seek advice with respect to payments he claims are due to him relative to his employment and termination of employment, reflect actions he took in a timely fashion to dispute the termination of his employment.
Prejudice to the employer
 The delay in this instance is of a relatively short duration. I am satisfied that the delay of itself will not cause KIDA any prejudice. In this respect I have noted that the parties have yet to engage in informed discussions over the possible settlement of underpayment claims made by Mr Lane.
 The granting of the extension of time, by itself must represent a prejudice to KIDA. I have taken this prejudice into account in reaching a conclusion.
The merits of the application
 On the information before me I am not able to make any conclusion with respect to the merits of Mr Lane's application. I have noted that the basis of his claim is strongly disputed by KIDA and that, if the KIDA assertions about the circumstances of the termination of Mr Lane's employment are made out, Mr Lane is unlikely to be successful in this application. However, on the information before me, I am unable to reach any definitive conclusion about the merits of the application and have declined to speculate in this respect.
Considerations of fairness
 The erroneous lodgment of applications pursuant to section 773 has prompted Fair Work Australia to consider extensions of time in relation to situations similar to those confronting Mr Lane. I consider that the granting of an extension of time in this circumstance is consistent with other decisions in these situations. I have most notably had regard to the decision of Raffaelli C in Trudgett v Training Aids Australia Pty Ltd 1 in this respect.
 To the extent that this factor requires consideration of the circumstances of other employees of KIDA, it is not a relevant consideration in these circumstances.
 Having considered the can circumstances I have concluded that there are exceptional circumstances in this instance such that an extension of time is warranted. My Order of 18 May 2010 was made accordingly. Further, it was made on the basis that the initial section 773 application is discontinued.
 For the sake of completeness I note that subsequent to this order being made Mr Lane's application was referred to conciliation but no agreement relative to the application was reached. A certificate pursuant to section 369 was subsequently issued on 19 May 2010.
SENIOR DEPUTY PRESIDENT
T Bourne counsel for the Applicant.
M Snadden representing the Respondent.
1 (2010 FWA 2235)
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