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Blake v Menzies Aviation (Ground Services) Pty Ltd

Blake v Menzies Aviation (Ground Services) Pty Ltd

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Case Copied 1 April 2016 11 min read

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[2016] FWC 1974
REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Joan Blake
v
Menzies Aviation (Ground Services) Pty Ltd T/A Menzies Aviation
(U2016/3647)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 APRIL 2016
Application for relief from unfair dismissal; application made outside of the time prescribed;
whether there are exceptional circumstances; whether discretion to extend should be
exercised; extension of time refused; application dismissed.
[1] This is an edited version of the decision delivered ex tempore and recorded in

transcript on 24 March 2016. Ms Blake (Applicant) has made an application under s.394 of
the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant commenced her
employment with Menzies Aviation (Ground Services) Pty Ltd t/a Menzies Aviation
(Respondent) on or about 7 August 2006.
[2] The Applicant was employed in the position of Passenger Services Supervisor at the

time of her dismissal. The Applicant's employment with the Respondent ended, with effect,
from 7 December 2015, at which time the Applicant tendered her resignation by email. The
Applicant says that the resignation was given under circumstances where she felt she had no
choice but to resign because of the Respondent’s conduct in its dealings with her, and the
deleterious effect that it was having on her health and wellbeing.
[3] The Applicant’s application was lodged on 7 January 2016. Applications for an unfair

dismissal remedy must be made within 21 days after the date on which the dismissal took
1

effect. As the date of termination, by reason of the resignation tendered, was 7 December
2015, the Applicant’s application should have been lodged in the Fair Work Commission
(Commission) by no later than 29 December 2015, and that is taking into account that 28
December 2015 was a substitute public holiday for Boxing Day. The application was
therefore lodged outside of the prescribed time limit, which is contained in s.394(2) and was,
in effect, nine days late.
[4] The Act allows the Commission to consider extending the period within which an

application for an unfair dismissal remedy may be made, but the exercise of that discretion
will only be considered if the Commission is satisfied that there are exceptional circumstances
2

which would warrant allowing a late application.
[2016] FWC 1974
[5] Before I deal with the evidentiary matters and the specific matters that I need to take

into account I should, for the benefit of the parties, say a few things about the principles that
are to be applied in considering whether I should exercise my discretion to extend time. As is
evident, by the text of s.394 of the Act, the statute allows me to extend or allow a further
period within which an application may be made, but only if first satisfied that there are
exceptional circumstances.
[6] There are a number of matters which I need to take into account in deciding whether

or not there are exceptional circumstances and these are: the reason for the delay, whether the

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 1974
Decision Date: 1 April 2016

CaseChat Overview and Summary

Ms Joan Blake, the Applicant, sought relief from an alleged unfair dismissal by Menzies Aviation (Ground Services) Pty Ltd, the Respondent, under section 394 of the Fair Work Act 2009. The Applicant was employed as a Passenger Services Supervisor until her resignation on 7 December 2015, which she claims was tendered under duress due to the Respondent’s conduct adversely affecting her health and wellbeing. The application for an unfair dismissal remedy was lodged nine days outside the statutory 21-day period, prompting the court to consider whether exceptional circumstances existed to justify extending the time limit.

The court examined various factors to determine if exceptional circumstances warranted extending the application period. These included the credibility of the Applicant’s explanation for the delay, her awareness of the dismissal, actions taken to dispute the dismissal, potential prejudice to the Respondent, the merits of the application, and fairness to other similarly situated individuals. The Applicant argued that her medical condition prevented timely filing, but the court found the medical evidence lacking as it did not cover the period after the termination or the application filing. Additionally, the Applicant’s awareness of the dismissal on the effective date and the absence of immediate action to dispute it further weakened her case. Although the Respondent would suffer no prejudice, this alone did not warrant an extension. The court assessed the merits of the application favourably to the Applicant but found the case weak, with the central issue being whether the resignation constituted a constructive dismissal.

Considering all factors, the Deputy President concluded that there was no credible explanation for the delay, the merits of the application were weak, and most factors either neutralised or weighed against the Applicant. Consequently, the court found no exceptional circumstances to justify extending the application period. The application for relief from unfair dismissal was dismissed, and an order was issued accordingly.

Orders