Brooke Lesley Kennedy v Yamari Ochre Pty Ltd - [2023] FWC 1982

[2023] FWC 1982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brooke Lesley Kennedy
v

Yamari Ochre Pty Ltd

(U2023/4790)

COMMISSIONER CRAWFORD

SYDNEY, 9 AUGUST 2023

Unfair dismissal application filed out of time

Background

Brooke Kennedy (Ms Kennedy) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Yamari Ochre Pty Ltd (Yamari Ochre).

Ms Kennedy was dismissed on 22 December 2022 for alleged serious misconduct and breach of fiduciary duty. Ms Kennedy filed an unfair dismissal application on 31 May 2023.

Yamari Ochre has objected to the application on the ground that the application is out of time.

Before considering the merits of the application, the Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time.[1]

Time limit for an unfair dismissal application

Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]

Given Ms Kennedy was dismissed on 22 December 2022, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 12 January 2023. The application was filed on 31 May 2023. There is no dispute between the parties about these dates and hence that the application was filed 139 days outside the 21-day period. As a result, Ms Kennedy needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) any action taken by Ms Kennedy to dispute the dismissal; and

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

(e) the merits of the application; and

(f) fairness as between Ms Kennedy and other persons in a similar position.

Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

Procedural history

On 15 June 2023, I issued directions for the filing of material and listed a hearing/determinative conference regarding the extension of time issue for 4 July 2023. The parties…

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.

Continue reading Brooke Lesley Kennedy v Yamari Ochre Pty Ltd

Details

AGLC: Brooke Lesley Kennedy v Yamari Ochre Pty Ltd [2023] FWC 1982
Case: [2023] FWC 1982
Decision Date: 9 AUGUST 2023

CaseChat Overview and Summary

Brooke Lesley Kennedy has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Yamari Ochre Pty Ltd (Yamari Ochre). Yamari Ochre has objected to the application on the ground that the application is out of time. The Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time. Section 394(2) of the FW Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. Ms Kennedy was dismissed on 22 December 2022 and the application was filed on 31 May 2023, 139 days outside the 21-day period. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the reason for the delay, whether Ms Kennedy first became aware of the dismissal after it had taken effect, any action taken by Ms Kennedy to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Ms Kennedy and other persons in a similar position. The Commission found there were exceptional circumstances as Ms Kennedy had taken extensive steps to dispute her dismissal and other grievances with Yamari Ochre since 22 December 2022 and she appears to have a strong argument that she was not notified of the reason for dismissal or given an opportunity to respond prior to the decision being made. The Commission granted an extension of time for the application to be made.

Orders