DECISION

Fair Work Act 2009
s.365—General protections

Bruna Lu Ferraz
v
Joe’s Burger Trust
(C2020/5265)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 11 SEPTEMBER 2020

Application to deal with contraventions involving dismissal filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Bruna Lu Ferraz (Applicant) for the Commission to deal with a general protections dispute involving dismissal from her employment with Joe’s Burger Trust (Respondent), made under s 365 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was filed, the Applicant has not attended Commission proceedings 1 or complied with the Commission’s directions of 25 August 2020 to file materials in relation to the jurisdiction of the Commission. The Respondent was invited, but not required, to participate in the proceedings. The Commission did not receive any adjournment requests in relation to the directions or the hearing. Both parties were on notice that any failure to comply or attend would result in the Commission proceeding to determine the matter on the materials before it and without hearing further from them. Accordingly, I have determined this matter on the basis of the original application being the only materials before the Commission at the time of the hearing.

[3] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). The application states that the Applicant’s dismissal took effect on 26 May 2020. This application was not lodged until 6 July 2020. The period of 21 days ended at midnight on 16 June 2020 and the application was lodged 20 days out of time.

[4] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s 366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s 366(2) of the Act.

[5] The exceptional circumstances test establishes a high hurdle for an applicant. 2 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.3 Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.4

[6] My consideration of the matters set out at s 366(2) follows.

Reason for the delay

[7] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an “acceptable” or “reasonable” or “credible” explanation. 5 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for…

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 4902
Decision Date: 11 SEPTEMBER 2020

CaseChat Overview and Summary

Bruna Lu Ferraz has applied to the Fair Work Commission for relief concerning contraventions involving her dismissal. Joe's Burger Trust has opposed the application on the basis that it was filed outside the six-month period permitted by section 524 of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the delay was justified and whether the circumstances were exceptional enough to warrant an extension of time.

The central issue before the Commission was whether the applicant could be granted an extension of time to file the application. The Commission considered the criteria for exceptional circumstances as outlined in the Fair Work Act and relevant case law. It examined the reasons provided by the applicant for the delay, the merits of the case, and whether there was any prejudice to the respondent if the application were to be accepted. The Commission found that the applicant had not provided sufficient grounds to justify the delay and that the circumstances did not meet the threshold for being considered exceptional.

The Fair Work Commission dismissed the application, finding that the applicant had not demonstrated exceptional circumstances that warranted an extension of time. The Commission noted that the applicant had failed to provide a compelling explanation for the delay and that there was no evidence of any mitigating factors that would justify the late filing. The decision highlights the importance of timely filing of applications under the Fair Work Act and reinforces the principle that extensions of time are only granted in exceptional cases.

No orders were made as the application was dismissed.

Orders