Amanda Taylor v Livable Limited - [2024] FWC 2743

[2024] FWC 2743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amanda Taylor
v

Livable Limited

(U2024/9211)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 2 OCTOBER 2024

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

This decision concerns an application by Ms Amanda Taylor (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Livable Limited (Respondent).

The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).

I conducted a hearing, by telephone, on 23 September 2024 in relation to the Applicant’s request for an extension of time.

The Applicant’s resignation from her employment with the Respondent took effect on 28 June 2024. The Applicant lodged her unfair dismissal application in the Commission on 8 August 2024.

Section 394(2) of the 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). The period of 21 days ended at midnight on 19 July 2024. The application was therefore filed 20 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider…

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.

Continue reading Amanda Taylor v Livable Limited

Details

AGLC: Amanda Taylor v Livable Limited [2024] FWC 2743
Case: [2024] FWC 2743
Decision Date: 2 OCTOBER 2024

CaseChat Overview and Summary

In Amanda Taylor v Livable Limited, Ms Taylor sought an extension of time to file her unfair dismissal application against her former employer, Livable Limited, beyond the statutory 21-day period. The Deputy President of the Fair Work Commission, Saunders, was tasked with determining whether exceptional circumstances justified extending this period. The key issue was whether Ms Taylor's delay in filing her application constituted exceptional circumstances under s 394(3) of the Fair Work Act 2009. The Deputy President considered various factors, including the reasons for the delay, Ms Taylor's awareness of her dismissal, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other similarly situated individuals.

Ms Taylor argued that her delay was due to the mental anguish caused by her employment and her unfamiliarity with the procedural timelines. However, the Deputy President found that Ms Taylor's lack of knowledge about the 21-day timeframe and her ability to manage other significant activities post-resignation did not constitute exceptional circumstances. Although Ms Taylor did take some action to dispute her dismissal by writing to the Respondent's board, the overall circumstances did not meet the threshold for exceptional circumstances. The absence of significant prejudice to the employer and the neutral nature of the merits of the application further supported the decision. Consequently, the Deputy President concluded that there were no exceptional circumstances warranting an extension of time and dismissed the application.

Orders