DECISION

Fair Work Act 2009
Section 394 - Application for an unfair dismissal remedy

Brittany Stark
v
Goodstart Early Learning Limited
(U2020/11439)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 SEPTEMBER 2020

Application for an unfair dismissal remedy - extension of time – related investigation by registration authority – applicant in receipt of legal advice - no exceptional circumstances - application dismissed

[1] On 23 August Brittany Stark (Ms Stark or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by Goodstart Early Learning Limited (Goodstart, the Respondent or the Employer).

[2] Ms Stark worked from 29 September 2014 until 26 June 2020 at the Respondent’s Mount Gambier Childcare Centre, most recently in the role of teacher. It was uncontested that she was summarily dismissed for alleged serious misconduct on 26 June 2020.

[3] Ms Stark acknowledged that she filed her claim outside the statutory 21-day time limit. She seeks an extension of time. The Employer opposes that course.

[4] I issued Directions on 27 August 2020. On 7 September 2020 the Respondent lodged a formal response opposing the application. On 11 September 2020 I received written materials from Mr Walsh (Bersee Legal) on behalf of Ms Stark including a witness statement by the Applicant.

[5] I heard the matter by telephone on 24 September 2020. Ms Stark was represented by Mr Walsh, with permission. Goodstart were represented by internal human resources officers Ms Black and Ms Shepherd. Ms Stark gave oral evidence. Materials of Goodstart were brought into evidence with agreement between the parties.

[6] Following the hearing I reserved my decision. This decision determines the extension of time issue.

Facts

[7] I will limit recitation of the facts to only those necessary to determine the extension of time issue.

[8] On 25 May 2020 and on her way to work Ms Stark was asked to pull over by South Australian Police (SAPOL) and provide a breath and saliva sample as part of a random road-side drug and alcohol test (RBT). While Ms Stark’s breath alcohol test returned a negative result her saliva test returned a faint positive result. The Applicant was prohibited from driving for 24 hours and her saliva sample was sent to a SAPOL laboratory for confirmatory testing.

[9] After submitting to the above testing, Ms Stark proceeded to attend for work at the Mount Gambier Goodstart Childcare Centre.

[10] When Ms Stark arrived at work, she spoke to the Centre Director. The conversation included the Director asking Ms Stark about the test and the test results. Ms Stark did not disclose the faint positive result.

[11] On 12 June 2020 the Education and Early Childhood Services Registration and Standards Board of South Australia (ESB) contacted the Employer and informed them of a confirmatory positive result, the ESB having been notified by SAPOL. Ms Stark was suspended from work duties via a video call…

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: [2020] FWC 5136
Decision Date: 30 SEPTEMBER 2020

CaseChat Overview and Summary

Brittany Stark applied for an unfair dismissal remedy against Goodstart Early Learning Limited. The dispute arose from an alleged unfair dismissal, and the matter was before the Fair Work Commission. The applicant sought an extension of time to lodge an application for unfair dismissal, arguing that a related investigation by the registration authority had delayed her ability to seek legal advice and file the application within the statutory time limit. The applicant contended that she was in receipt of legal advice and had been diligent in pursuing her rights, but the delay was due to the registration authority's investigation, which she argued constituted exceptional circumstances warranting an extension of time.

The primary legal issue before the Commission was whether the applicant had demonstrated exceptional circumstances that justified extending the time limit for lodging her unfair dismissal application. The Commission considered whether the applicant's receipt of legal advice and the ongoing investigation by the registration authority constituted exceptional circumstances under the relevant statutory provisions. The Commission assessed the applicant's diligence in seeking legal advice, the nature of the registration authority's investigation, and whether these factors warranted an extension of time beyond the statutory deadline.

The Commission concluded that while the applicant had been in receipt of legal advice and had acted diligently, the circumstances did not amount to exceptional circumstances as defined by the legislation. The investigation by the registration authority, while relevant, did not constitute an unforeseen or uncontrollable event that prevented the applicant from lodging her application within the statutory period. The Commission found that the applicant's circumstances, while regrettable, did not meet the threshold for an extension of time. Consequently, the application for an extension of time was dismissed, and the applicant's unfair dismissal remedy application was not accepted due to the failure to meet the time requirements.

The Fair Work Commission dismissed Brittany Stark's application for an unfair dismissal remedy due to the failure to lodge the application within the statutory time limit. The Commission held that the circumstances presented, while unfortunate, did not amount to exceptional circumstances warranting an extension of time. As a result, the applicant's remedy application was not accepted, and no further orders were made in relation to the unfair dismissal claim.

Orders