Anai Van-Hamburg v NTI Limited - [2024] FWC 31

[2024] FWC 31

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anai Van-Hamburg
v

NTI Limited

(U2023/11952)

COMMISSIONER LIM

PERTH, 10 JANUARY 2024

Application for an unfair dismissal remedy – extension of time – extension granted

This decision concerns Ms Anai Van-Hamburg’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

NTI Limited (Respondent) employed Ms Van-Hamburg as a Claims Consultant on 1 July 2021. The Respondent dismissed Ms Van-Hamburg on 9 November 2023. Ms Van-Hamburg lodged her application with the Fair Work Commission on 1 December 2023.

Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.

In Ms Van-Hamburg’s case, the period of 21 days ended at midnight on 30 November 2023. Her application is one day out of time.

Ms Van-Hamburg seeks a further period for her application to be made under s 394(3). The Respondent opposes this request.

The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 394(3)(a)–(f) of the Act.

I conducted a hearing via MS Teams on 4 January 2024. At the hearing, Ms Van-Hamburg represented herself, gave sworn evidence and was cross-examined. Permission was granted for Ms Moulton of Mapien to represent the Respondent. Ms Sue O’Brien gave evidence for the Respondent.

Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are exceptional, and accordingly grant Ms Van-Hamburg an extension of time.

The detailed reasons for my decision follow.

Should an extension of time be granted?

Under s 394(2) and (3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.

It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not 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 are of no particular significance, when taken together can be considered exceptional.[2]

In determining whether there are exceptional circumstances, I must take into account the criteria in s 394(3):

(a)the reason for the delay; and

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

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

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

(e)the merits of the application; and

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

Each of the above matters must be…

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: [2024] FWC 31
Decision Date: 10 JANUARY 2024

CaseChat Overview and Summary

The applicant, Anai Van-Hamburg, filed an application for an unfair dismissal remedy with the Fair Work Commission against NTI Limited. Van-Hamburg was employed as a Claims Consultant and was dismissed on 9 November 2023. Her application was lodged on 1 December 2023, one day beyond the 21-day statutory period stipulated in section 394(2) of the Fair Work Act 2009 (Cth). The Commission was required to decide whether to grant Van-Hamburg an extension of time for her application, as provided for in section 394(3) of the Act.

The primary legal issue was whether the circumstances were exceptional enough to warrant an extension of the time limit for filing the unfair dismissal application. The Commission assessed this based on the factors outlined in section 394(3) of the Act, which include the reason for the delay, whether the applicant became aware of the dismissal after it took effect, any action taken by the applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other persons in a similar position. The Commission found that Van-Hamburg's delay was due to a miscalculation of the filing deadline and the emotional impact of her great-grandmother's death. The Commission also noted that the delay was only one day, and there was no prejudice to the employer. Based on these findings, the Commission concluded that exceptional circumstances existed.

The Fair Work Commission granted Van-Hamburg an extension of time to file her unfair dismissal application. The Commission found that the reasons for the delay, coupled with the minimal prejudice to the employer and the one-day nature of the delay, constituted exceptional circumstances. Therefore, the application was accepted as timely filed on 1 December 2023. This decision allows Van-Hamburg to proceed with her unfair dismissal application within the extended timeframe.

Orders