DECISION

Fair Work Act 2009
s.365—General protections

Allison Fitzgerald
v
Highway NN Pty Ltd
(C2019/5777)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 15 NOVEMBER 2019

Application to deal with a general protections dispute involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that Mrs Allison Fitzgerald (the Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge her application. The reasons for that decision follow.

Background

[3] On 29 April 2019, the Applicant commenced casual employment with Highway NN Pty Ltd (the Respondent) and did not work a fixed roster from week to week.

[4] On 11 June 2019, the Applicant notified the Respondent of her incapacity to work because she had the flu. 1 The Respondent requested to stay informed about “how she was getting on”.

[5] On 12 June 2019, the Applicant notified by text message of her ongoing illness meaning she remained unfit for work on 13 and 14 June 2019.

[6] On 17 and 18 June 2019, the Applicant was rostered, but did not attend, for work. She claims she was unaware of having been so rostered and was “out of contact” for the period 17 to 21 June 2019 due to her ongoing illness. The Applicant says she did answer a call on 17 June 2019 from CVGT, a third party organisation “whose job it is to help job seekers get and keep work”, and claimed to have asked them to notify her employer of her ongoing illness. 2 The Respondent claims that the Applicant was well aware and had been informed in advance of her rostered hours for the month of June. It did not receive a message via CVGT and did not consider this an appropriate means of communication.

[7] The Applicant first sought to make contact with the Respondent again by text message sent on 24 June 2019, followed up by a phone call on 25 June 2019.

[8] On 25 June 2019, the Applicant spoke with the Respondent’s manager by telephone. The Applicant claims to have been told (amongst other things) that her role had been filled and she would not be rostered for any further shifts.

[9] On 2 July 2019, the Applicant sent a text message to the Respondent requesting a separation certificate and confirming that she would return her uniform. On 30 July 2019, a separation certificate was provided by the Respondent to Centrelink and recorded:

a) the reason for termination as “Abandonment of employment – went off for 2 days unwell and didn’t contact site or notify until 2 weeks had passed – expected job to be still there and as a casual no job…

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: [2019] FWC 7693
Decision Date: 15 NOVEMBER 2019

CaseChat Overview and Summary

In the Fair Work Commission, Allison Fitzgerald brought an application against Highway NN Pty Ltd, contesting her dismissal. The application was filed beyond the statutory time limit, which raised a preliminary issue of whether the late filing could be excused under the circumstances. The Commission was tasked with determining whether the delay in filing was justified and whether the exceptional circumstances doctrine could be invoked to allow the application to proceed. The central legal issue was whether the delay in filing the application could be excused due to exceptional circumstances, thereby allowing the Commission to exercise its discretion to accept the late filing.

The Commission considered the nature and cause of the delay, as well as the impact of the delay on the respondent. The Commission noted that the applicant had not provided a satisfactory explanation for the delay and found that the circumstances did not warrant an extension of the time limit. The Commission held that the delay was not due to any fault on the part of the applicant and that there were no exceptional circumstances that would justify accepting the late filing. The Commission found that the applicant's delay in filing the application was not excusable and that the application was therefore time-barred.

As a result, the Commission dismissed the application. The Commission found that the delay in filing the application was not justified and that the exceptional circumstances doctrine did not apply in this case. The application was dismissed, and the respondent's motion for an order that the application be dismissed as time-barred was granted. The Commission did not exercise its discretion to accept the late filing, and the application was dismissed with no further orders.

Orders