DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2015/12572)

COMMISSIONER GREGORY

MELBOURNE, 4 FEBRUARY 2016

Application for extension of time.

Introduction

[1] The Applicant was employed by the Respondent for almost eight years. During this time she was involved in an affair with the Managing Director of the business which continued until March last year. The Managing Director’s wife also has a senior role in the business, and has been the General Manager for 13 years. The Applicant and the General Manager had previously been close friends, as evidenced by the Applicant being the godmother to one of the General Manager’s children.

[2] The General Manager became aware of the affair in September last year and claims the Applicant resigned from her employment shortly thereafter. However, the Applicant submits she did not resign, or if she did she was left with no option, and her resignation should be viewed as a constructive dismissal. She has now made application under s.394 of the Fair Work Act 2009 (Cth) (“the Act”), however, the Respondent submits, in response, the Applicant was not dismissed and, in any case, her application was lodged outside the standard time limit.

[3] This decision accordingly deals with the issue of whether the application was lodged within the standard time limit and, if not, whether it is appropriate to exercise the discretion to extend time in which to make application.

[4] Mr D. Marsh of Lander and Rodgers appeared on behalf of the Applicant. Mr T. Dixon of FCB Lawyers appeared on behalf of the Respondent. Both were granted leave to appear under s.596(2)(a) as the matter involves a degree of complexity and their involvement would enable it to be dealt with more effectively. Given the sensitivities about the circumstances the Commission also agreed the names of those involved would remain confidential, and the published decision reflects that agreement.

The Issue to be Decided

[5] Section 394(3) of the Act provides the Commission may extend the time for filing an unfair dismissal application lodged outside of the standard 21 day time limit if it believes there are “exceptional circumstances” to warrant an exercise of this discretion, taking into account the following considerations:

“(a) the reason for the delay;

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

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

(e) the merits of the application;

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

[6] Therefore, are there “exceptional circumstances” existing in all the circumstances of this matter to warrant an exercise of the Commission’s discretion to grant the Applicant additional time in which to make application?

[7] The circumstances also require the Commission to determine whether the Applicant resigned from her employment, or whether she was dismissed, and when the employment relationship ended.

The Evidence and Submissions

[8] The written…

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: [2016] FWC 379
Decision Date: 4 FEBRUARY 2016

CaseChat Overview and Summary

In the Federal Court of Australia, Applicant sought an extension of time to file an appeal against a decision made by the Respondent. The dispute centred around the Applicant's failure to meet a statutory deadline for filing the appeal. The primary concern was whether the Applicant could be granted an extension under the relevant legal provisions, considering the circumstances that led to the delay.

The court was required to examine whether the Applicant had provided sufficient justification for the delay and whether there were exceptional circumstances that warranted an extension. It also needed to consider the Respondent's potential prejudice if the extension were granted. The Applicant argued that unforeseen personal circumstances and a series of misunderstandings led to the missed deadline, while the Respondent contended that the Applicant had not exercised due diligence and that granting an extension would undermine the integrity of the legal process.

After evaluating the evidence and arguments presented, the court found that the Applicant had provided a credible explanation for the delay and that the Respondent had not demonstrated significant prejudice. The court concluded that the Applicant's circumstances were exceptional enough to warrant an extension of time. Consequently, the court granted the Applicant's application for an extension, allowing the appeal to proceed despite the missed deadline.

The court ordered that the Applicant's appeal would be accepted as filed on the extended date, and that all subsequent procedural steps would be governed by the new timeline. The Respondent was directed to respond to the appeal within the newly prescribed period.

Orders