Chou v Digital61 Pty Ltd [2021] FCA 640

Federal Court of Australia

Chou v Digital61 Pty Ltd [2021] FCA 640 File number: ACD 39 of 2020

Judgment of: ABRAHAM J

Date of judgment: 11 June 2021

Catchwords: INDUSTRIAL LAW – General protections claim under Fair Work Act 2009 (Cth) – termination of employment – where applicant filed application outside the statutorily prescribed period – application for extension of time

Legislation: Fair Work Act 2009 (Cth) ss 340, 368, 370, Part 3-1 Industrial Relations Act 1988 (Cth) s 170EA Workplace Relations Act 1996 (Cth) s 170CP

Cases cited: Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Clarke v Service to Youth Council Inc [2013] FCA 1018 Jennings v Salvation Army [2003] FCA 1193; 128 IR 366 Moloney v ATM Logistics Pty Ltd [2018] FCA 640

Division: Fair Work Division

Registry Australian Capital Territory

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 41

Date of hearing: 29 March 2021

Counsel for the Applicant: Applicant appeared in person

Counsel for the Respondent: Mr. A Opas

Solicitor for the Respondent: Mackenzie Workplace Law

ORDERS ACD 39 of 2020

BETWEEN: IRWIN CHOU Applicant

AND: DIGITAL61 PTY LTD Respondent

order made by: ABRAHAM J DATE OF ORDER: 11 June 2021

THE COURT ORDERS THAT:

1. The application for an extension of time is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J: 1 On 4 October 2019 the applicant commenced employment with the respondent, Digital61 Pty Ltd, a Canberra-based IT company. He was employed as the Operations Manager pursuant to a written employment agreement dated 2 October 2019. On 6 March 2020, the respondent terminated the applicant's employment with four weeks' notice. 2 The applicant seeks an extension of time to bring a general protections court application in respect of his dismissal from employment, which he contends is in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act). An application of this kind must be brought within 14 days after the Fair Work Commission (FWC) issues a certificate stating that the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful: s 370(a)(ii) of the FW Act. The applicant filed his originating application one day outside of the statutorily prescribed 14 day period. 3 A judge of this Court directed that the applicant file an application for the extension and imposed a timetable for so doing, together with the filing of written submissions and evidence in support of the application. 4 Pursuant to the orders, on 20 October 2020 the applicant filed an Interlocutory Application seeking an extension of time pursuant to s 370(a)(ii) of the FW Act together with a supporting affidavit sworn by him that day. The applicant did not file any written submission in accordance with the orders. 5 The respondent opposed the application, and relied on the affidavits of Bill Ratcliff (Director of Digital61 Pty Ltd) affirmed 2 November 2020; Troy Rollan (Delivery Executive who supervised the applicant up to 6 March 2020) affirmed 2 November 2020; and Rayan Pulis (Service Delivery Manager who supervised the applicant after 6 March 2020) affirmed 2 November 2020. The respondent filed written submissions. 6 The applicant was unrepresented at the hearing. 7 For the reasons below, the application for an extension of time is dismissed.