Angela Williams v NHC Disability Services Pty Ltd - [2023] FWC 2519

[2023] FWC 2519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Angela Williams
v

NHC Disability Services Pty Ltd

(C2023/3312)

COMMISSIONER P RYAN

SYDNEY, 29 SEPTEMBER 2023

Introduction

This decision concerns an application by Ms Angela Williams (Ms Williams/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

In the Application, Ms Williams stated her employment with NHC Disability Services Pty Ltd (Respondent) commenced on 6 December 2022 and that her dismissal took effect from 17 May 2023. The Application was made at 12:20am on 8 June 2023.

Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The Application was therefore made 20 minutes outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.366(2).

The matter was allocated to my Chambers to determine whether an extension of time should be granted under s.366(2).

In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.

The matter was heard on 1 August 2023. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr E Patakas.

The following witness statements and documents were admitted into evidence:

Exhibit No.

Description

1

Annexures to Form F8 Application.

2

Email from E. Patakas to FWC dated 30 June 2023 in matter C2023/3268.

3

Statutory Declaration of Charlotte Bruce-Goodlet dated 28 July 2023.

4

Email from Applicant to E. Patakas dated 22 May 2023.

5

Email from Applicant to E. Patakas dated 26 May 2023.

For the reasons that follow, I decline an extension of time under s.366(2).

Exceptional Circumstances

The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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.366(2) contrasts with the broad discretion conferred on…

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: [2023] FWC 2519
Decision Date: 29 SEPTEMBER 2023

CaseChat Overview and Summary

Angela Williams brought an application against NHC Disability Services Pty Ltd, seeking an extension of time to file her dismissal dispute under section 365 of the Fair Work Act 2009. The Commission was required to determine whether there were 'exceptional circumstances' to justify extending the 21-day period for filing an application for a dismissal dispute. The decision-making process involved considering various factors, including the reason for the delay, any actions taken by the applicant to dispute the dismissal, any prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a similar position.

The applicant's primary argument for an extension was due to technical issues with the Commission's Online Lodgement Service (OLS), which allegedly prevented timely filing of her application. The Commissioner found that the applicant failed to provide sufficient evidence to substantiate her claim of technical difficulties. Moreover, the lack of a credible explanation for the delay was a significant factor against granting an extension. The applicant's other justifications, such as her alleged vertigo, were deemed unsatisfactory. Therefore, the Commissioner concluded that the applicant did not meet the high threshold for 'exceptional circumstances', leading to the denial of the extension request. Consequently, the application was dismissed.

Orders