Aishlin Walker v Grill'd Pty Ltd - [2022] FWC 1370

[2022] FWC 1370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aishlin Walker
v

Grill’d Pty Ltd

(U2021/11939)

COMMISSIONER P RYAN

SYDNEY, 31 MAY 2022

Unfair dismissal application filed out of time – circumstances exceptional – extension of time granted.

Introduction

This decision concerns an application by Ms Aishlin Walker (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) lodged on 20 December 2021 (Application).

In the Application, the Applicant states that her employment with Grill’d Pty Ltd (Respondent) was terminated with effect from 29 November 2021.

Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). By the dates set out in the Application, the Application was filed within the prescribed period.

However, the Respondent disputes the date of termination in the Application. The Respondent submits the date the dismissal took effect was 23 November 2021. If the Respondent is correct, the period of 21 days ended at midnight on 14 December 2021.

The matter was heard together with the unfair dismissal application made by Ms Celeste Walker[1], the Applicant’s sister, as a determinative conference via Microsoft Teams on 28 April 2022, with the evidence in one proceeding being evidence in the other.

In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the date of dismissal and if required, whether an extension of time should be granted. The materials filed by the parties were consolidated by my chambers into a Digital Hearing Book (DHB).

The Applicant represented herself and was supported by her father, Geoff Walker. The Respondent was represented by Mr Damian Bevilacqua, the Respondent’s head of HR services.

For the reasons that follow, I grant an extension of time under s.394(3).

When did the dismissal take effect?

The parties are in dispute about when the dismissal took effect. The Applicant contends the dismissal took effect on 29 November 2021, while the Respondent contends the dismissal took effect on 23 November 2021.

It is not in dispute that on 23 November 2021, the Respondent sent a letter of termination to the Applicant’s usual email address and that was received by the Applicant’s email account at 1.50pm.[2]

The letter of termination states:

“We refer to our letter dated 16^th November 2021. The letter outlined that Grill’d employees will need to be vaccinated in order to return to work, in line with the NSW Government’s Public Health Order issued on the 11^th October 2021. This followed correspondence via phone and email relating to the Health Order and the requirements that they entailed.
To date, you have been unable to fulfil the inherent requirements and duties of your role as Team Member since the 12^th

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: [2022] FWC 1370
Decision Date: 31 MAY 2022

CaseChat Overview and Summary

This case involved an application by Ms Aishlin Walker for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. Ms Walker alleged that her employment with Grill’d Pty Ltd was terminated on 29 November 2021, while the company contended that the dismissal took effect on 23 November 2021. The legal issue before the Fair Work Commission was whether to grant an extension of time for the unfair dismissal application, which was filed on 20 December 2021, outside the 21-day period. The Commission found that the dismissal took effect on 24 November 2021, making the application 5 days late. The key issue was whether exceptional circumstances existed to warrant an extension of time under section 394(3) of the FW Act.

The Commission considered various factors in determining whether exceptional circumstances existed, including the reason for the delay, whether Ms Walker became aware of the dismissal after it took effect, any action taken by Ms Walker to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Ms Walker and other persons in a similar position. The Commission found that Ms Walker provided an acceptable explanation for the delay based on her reliance on the company's correspondence stating the termination date as 29 November 2021. Ms Walker had also disputed the dismissal from 24 November 2021. The Commission found that these factors weighed in favour of finding exceptional circumstances. While other factors weighed neutrally or against finding exceptional circumstances, the Commission concluded that the exceptional circumstances did exist.

Accordingly, the Commission granted an extension of time for the unfair dismissal application to be made. The Commission found that it was appropriate to extend the period for the application to be made to 20 December 2021, to ensure fairness. The Commission emphasised that Ms Walker should not be prejudiced by her reliance on the company's incorrect correspondence regarding the termination date. An order was made extending the period for the unfair dismissal application to be made to 20 December 2021.

Orders