DECISION

Fair Work Act 2009
s.365—General protections

Angela Gibbons
v
Sonacare
(C2021/4792)

DEPUTY PRESIDENT BOYCE

SYDNEY, 1 NOVEMBER 2021

Application to deal with contraventions involving dismissal – request for an extension of time - application filed 18 minutes outside 21-day time limit – poor and unstable internet connection supported by evidence – exceptional circumstances need not be unique, unprecedented, or very rare – credible reason for delay – satisfaction as to exceptional circumstances – discretion to grant extension of time enlivened – extension of time granted.

Introduction

[1] On 13 August 2021, Ms Angela Gibbons (Applicant) filed a general protections application involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by Sonacare (Respondent) for discriminatory reasons (s.351), and/or for a temporary absence due to an illness or injury (s.352).

[2] In addition to rejecting the allegations as to contravention asserted by the Applicant in her Application, the Respondent also says that the Application is out of time. This decision concerns the Applicant’s request for an extension of time.

[3] Section 366(1) of the Act provides that an application made under s.365 of the Act must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to “exceptional circumstances (s.366(2) of the Act).

[4] It is not in dispute that the Applicant:

(a) commenced her employment with the Respondent on 19 February 2021;

(b) was dismissed by the Respondent on 22 July 2021;

(d) filed her Application at 12.17am on 13 August 2021; 1

(e) should have filed her Application by 11.59pm on 12 August 2021 (to be within the 21-day time limit); and

(f) filed her Application 18 minutes outside of the 21-day time limit.

[5] At the hearing, the Applicant appeared for herself, and Dr Laura Sowden, Special Counsel, Barry Nilsson Lawyers, appeared with permission on behalf of the Respondent.

[6] The Applicant was granted leave at the conclusion of the hearing to file and serve further limited evidence and submissions to support her request for an extension of time. In this regard, the following directions were issued:

“1. The Applicant is to file with the Commission and serve on the Respondent any submissions in response to the Respondent’s submissions filed on 12 October.

2. By 4:00pm AEDT Tuesday, 19 October 2021, the Applicant is to file with the Commission and serve on the Respondent any further documentation that identifies that the messages contained at pages 52 and 53 of the Courtbook were messages received on 12 August 2021.

3. By 4:00pm AEDT Wednesday, 20 October 2021, the Respondent is to advise, by way of email to Chambers any matters it wishes to raise concerning the matters at [1] and [2] above.

4.…

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 Angela Gibbons v Sonacare

Details

AGLC: Angela Gibbons v Sonacare [2021] FWC 6215
Case: [2021] FWC 6215
Decision Date: 1 NOVEMBER 2021

CaseChat Overview and Summary

Angela Gibbons brought an application against Sonacare in the Fair Work Commission, seeking to deal with contraventions involving her dismissal. The primary issue was whether the application should be dismissed for being lodged 18 minutes after the 21-day time limit, despite evidence of a poor and unstable internet connection. The court was required to determine if the delay was due to exceptional circumstances, which warranted an extension of the time limit. It also needed to assess if the reason provided for the delay was credible and sufficient to justify an extension.

The court examined the evidence provided regarding the internet connection, including the affidavits and other supporting material. It concluded that the delay was due to a credible reason, which was the poor and unstable internet connection. The court held that exceptional circumstances need not be unique, unprecedented, or very rare, and that the reason provided was sufficient to satisfy the requirement for exceptional circumstances. The court was satisfied that the delay was not due to any fault or neglect on the part of Ms Gibbons or her representatives and that the delay was minimal. Consequently, the court exercised its discretion to grant an extension of time for the application to be heard.

The Fair Work Commission granted the extension of time for the application to be heard, finding that the delay was due to exceptional circumstances and that the reason provided was credible. The court's decision highlights the importance of considering the context and circumstances of each case when determining whether to grant an extension of time. The court's decision also underscores the need for a flexible approach when dealing with applications for extensions of time, particularly in cases where the delay is minimal and due to factors beyond the control of the applicant.

Orders