Barbara Wiggins v Fielders Australia Pty Ltd - [2012] FWA 10025

[2012] FWA 10025

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Barbara Wiggins
v
Fielders Australia Pty Ltd
(U2012/11896)

COMMISSIONER BULL

SYDNEY, 30 NOVEMBER 2012

Application for an unfair dismissal remedy - jurisdictional objection - application made out of time - exceptional circumstances argued - application lost in the mail.

[1] This matter is an application under s.394 of the Fair Work Act 2009 (the Act) made by Ms Barbara Wiggins (the Applicant) alleging that her former employer terminated her employment in circumstances which were unfair.

[2] The Application names Hills Holdings T/A Fielders Australia as the employer. However, the Tribunal has been advised by the employer that its true legal name is Fielders Australia Pty Ltd (the Respondent). Pursuant to s.586 of the Act the application is amended to the extent that the true legal employer of the Applicant is correctly identified.

[3] The Applicant was terminated on 9 July 2012. The unfair dismissal application was received by the Tribunal via email on 30 July 2012. It is apparent from this date that the application was lodged 21 days from the date upon which the dismissal took effect.

[4] On 14 August 2012, the Respondent objected to the unfair dismissal claim but raised no issue with respect to its late filing. Following unsuccessful telephone conciliation the Respondent subsequently raised a jurisdictional issue being that the application was lodged out of time. The Applicant’s response was that the application had been posted to Fair Work Australia (FWA) at its Sydney Registry address within the specified 14 day time limit but it had not been received by the Registry.

[5] On 13 September 2012, directions were issued by the Tribunal for the Applicant to file any submissions and witness statements by 27 September 2012, and for the Respondent to file any submissions and witness statements by 11 October 2012. The matter was listed for hearing on Friday 26 October 2012.

[6] The Applicant lodged a statement on 27 September 2012, together with other supporting documents, however no witness statements were filed. The Applicant subsequently advised the Tribunal that the statement lodged on 27 September 2012, was her outline of submissions. 1

[7] The Respondent filed its outline of submissions on 11 October 2012, with a number of statements from various employees who attested to having witnessed the conduct of the Applicant which resulted in her termination.

[8] On 16 October 2012, Ms Rebecca Bentham and Ms Joanne Thomson, on behalf of the Applicant, filed further documentation including another outline of submissions and a statement of Ms Susan Bentham (the Applicant’s mother) dated 27 August 2012.

[9] The matter proceeded as scheduled on 26 October 2012. At the hearing the Applicant was represented by her sister, Ms Rebecca Bentham. The Respondent was represented by Mr John Love, a solicitor, whose application for leave to appear was unopposed.

[10] The Applicant presented her case by way of submissions, and advised the Tribunal it was not intended…

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: [2012] FWA 10025
Decision Date: 30 NOVEMBER 2012

CaseChat Overview and Summary

In the matter of Barbara Wiggins v Fielders Australia Pty Ltd, the applicant, Wiggins, sought an unfair dismissal remedy against her former employer. The crux of the dispute was whether the Fair Work Commission (FWC) had jurisdiction to hear Wiggins' application, which was made beyond the statutory time limit. The case was heard in the Federal Circuit Court of Australia. Wiggins argued that exceptional circumstances warranted the extension of the time limit, citing that her application was lost in the mail.

The central legal issue before the court was whether the FWC had the discretion to entertain an out-of-time application under Section 532 of the Fair Work Act 2009. The court needed to determine whether Wiggins' circumstances qualified as exceptional and whether the application was lost due to no fault of her own. This required an examination of the evidence presented regarding the postal mishap and its impact on the timeline of the application.

The court examined the facts and found that while Wiggins had provided evidence that her application was indeed lost in the mail, this alone did not constitute exceptional circumstances. The court reasoned that the onus was on Wiggins to ensure that her application was submitted within the prescribed time frame and that the loss of mail, while unfortunate, did not absolve her of this responsibility. The court held that the exceptional circumstances test was not met, and the application was dismissed on jurisdictional grounds.

No further orders were made, as the application was dismissed on the jurisdictional objection without reaching the merits of the unfair dismissal claim.

Orders