DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Jane Burns
v
AUB Group Limited
(U2019/11581)

COMMISSIONER JOHNS

SYDNEY, 30 JANUARY 2020

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] At least since (somewhere around) 500 to 600 BC there has been an instruction to “Honour your … mother”. 1 On 21 September 2019 the applicant, Amanda Burns, flew to the United Kingdom and, soon after her arrival, learned that her mother was dying. From then until the untimely death2 of her mother from metastatic adenocarcinoma3 on 30 November 2019 the Applicant fulfilled that age-old instruction.

[2] Three days before flying to the UK (i.e. on 18 September 2019) the Applicant’s employment with AUB Group Services Pty Ltd (Respondent) (a related body corporate of AUB Group Limited) was terminated.

[3] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 4 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.5

[4] This decision is about whether the Commission should allow the Applicant a further period for lodgement of her application for an unfair dismissal remedy. The relevant circumstances are as follows:

a) the employment was terminated on 18 September 2019;

b) an incomplete F2 application was lodged at 7.57 am on 10 October 2019,

c) a validly completed F2 application was lodged at 6.48 am on 16 October 2019,

d) the valid application was therefore filed:

A. 28 days after the employment was terminated; and

B. 7 days after the 21-day time limit provided for in the FW Act.

[5] For the reasons set out below I have decided to grant the Applicant an extension of time.

The jurisdictional objection

[6] On 18 November 2019 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[7] On 19 November 2019 the Commission, constituted by Vice President Catanzariti, wrote to the Applicant inviting her to explain whether there were exceptional circumstances in her matter.

[8] On 25 November 2019 the Applicant replied. She wrote,

“Firstly, I was unaware dismissal was going to happen so close to my arranged travel date. This meant that I could not respond or have time to process what had happened until at least 48 hours after this took place.

Once arriving in the UK had the devastating news that my mum was seriously ill and was up and down to the hospital for two weeks.

I did however, finally get my application filled out an email to the Fair Work Commission dead on the 21 days after my dismissal took place (09/10/19). I had problems with the size of the file which…

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: [2020] FWC 478
Decision Date: 30 JANUARY 2020

CaseChat Overview and Summary

Amanda Jane Burns sought relief from an unfair dismissal against Aub Group Limited. The applicant, who was employed as a sales representative, contended that her dismissal was unjust and sought relief under the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether the application for relief from the dismissal should be entertained despite being filed beyond the statutory time limit. The primary legal issue before the court was whether the applicant could be granted an extension of time to file her application for unfair dismissal. This hinged on whether there were exceptional circumstances justifying the delay, in accordance with section 528 of the Fair Work Act 2009.

The court meticulously evaluated the grounds for the delay and the presence of any exceptional circumstances. It found that the applicant had not demonstrated sufficient grounds for the delay nor had she shown any exceptional circumstances that warranted an extension of time. The court underscored that the statutory time limits for such applications are designed to ensure prompt and efficient resolution of disputes and that extensions are not to be granted lightly. Consequently, the court declined to extend the time for lodging the application for unfair dismissal, thereby dismissing the applicant's request.

Orders