DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Alice Arsanious
v
Uniting SA Ltd
(U2021/8392)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 OCTOBER 2021

Application for an unfair dismissal remedy – extension of time – representative error -miscalculation - whether exceptional circumstance – discretionary considerations – extension granted

[1] On 17 September 2021 Alice Arsanious (Ms Arsanious or the applicant) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) concerning the termination of her employment by Uniting SA Pty Ltd (Uniting or the respondent) on 26 August 2021.

[2] The application was lodged twenty-two days after dismissal took effect, being one day beyond the statutory time limit. Ms Arsanious says late lodgement was the result of representative error by her solicitor.

[3] This decision deals with whether an extension of time for lodgement should be granted.

[4] I issued directions on 24 September 2021.

[5] Though there appear to be disputed facts on the merits, no disputed facts exist on the extension of time issue. By consent, that matter is determined on the papers (section 397 FW Act not applying 1).

[6] Statements from the applicant and her solicitor (Ms McGillick of Campbell Law) have been filed. Neither person was required for examination. These statements depose to matters of a non-controversial nature and are plausible. I admit those statements into evidence, by consent.

[7] Written submissions were filed by both the applicant and the respondent.

Facts

[8] Uniting operates community aged care services.

[9] Ms Arsanious was employed as a support worker by Uniting in July 2017.

[10] In July 2020 Ms Arsanious sustained an injury resulting in a medical incapacity to perform regular duties.

[11] On 26 August 2021 Uniting wrote to Ms Arsanious advising that her employment was terminated effective that day, with five weeks’ notice paid in lieu. The stated reason for termination was “you are no longer capable of meeting the inherent requirements of your position and contract of employment obligations”.

[12] Ms Arsanious sought legal advice following her dismissal.

[13] On 1 September 2021 Ms Arsanious contacted Campbell Law. An appointment was made for her to meet a solicitor from that firm.

[14] On 9 September 2021 Ms Arsanious met with a solicitor, Ms McGillick. At this meeting Ms Arsanious was advised:

• of her right to make an unfair dismissal application;

• that an application needed to be made within 21 days of the dismissal taking effect; and

• that the last day for filing the application was 17 September 2021.

[15] The date 17 September 2021 was advised by Ms McGillick and based on a calculation she had made.

[16] In providing this advice, Ms McGillick made a miscalculation. Instead of counting the day after dismissal as day one, she calculated it as day zero. Thus, whereas the 21^st day was in fact 16 September 2021, Ms McGillick’s calculation led her to advise Ms Arsanious…

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: [2021] FWC 6108
Decision Date: 13 OCTOBER 2021

CaseChat Overview and Summary

In the matter of Alice Arsanious versus Uniting SA Ltd, the Fair Work Commission was tasked with determining whether an extension of time should be granted to the applicant for lodging an unfair dismissal application. The applicant, Alice Arsanious, sought a remedy for unfair dismissal, but her application was lodged beyond the statutory time limit. The primary issue before the Commission was whether the application should be accepted as late due to alleged errors made by her representative, including miscalculation of the time limit.

The Commission considered whether the errors made by the applicant's representative constituted an exceptional circumstance warranting an extension under section 524 of the Fair Work Act. The applicant argued that the representative's error in calculating the time limit for lodging the application, along with a subsequent misapprehension, amounted to exceptional circumstances. The Commission examined the discretionary factors applicable in determining whether to grant an extension, including the degree of fault attributable to the applicant, the timeliness of the application, and the prospects of success of the application on the merits.

After thorough deliberation, the Commission found that the applicant's representative had indeed made an error in calculating the time limit and that this error was not attributable to any fault on the part of the applicant. The Commission further found that the misapprehension regarding the time limit was not entirely attributable to the representative's error. Given the nature of the errors, the Commission concluded that exceptional circumstances did exist, and it was appropriate to exercise its discretion to grant an extension. The Commission accepted the application as having been lodged within the extended time limit and determined that it was appropriate to proceed with the merits of the unfair dismissal application.

The Commission granted the application for an extension of time and ordered that the application for unfair dismissal remedy be considered on its merits.

Orders