DECISION

Fair Work Act 2009
s.365—General protections

Kimberley Burke
v
Techtronic Industries Australia Pty Ltd
(C2016/4983)

DEPUTY PRESIDENT DEAN

SYDNEY, 29 SEPTEMBER 2016

Application to deal with contraventions involving dismissal.

[1] Ms Kimberley Burke (the Applicant) was employed by Techtronic Industries Australia Pty Ltd (the Respondent) in the role of Executive Assistant/Office Manager. Her employment was terminated on 15 June 2016. She alleged that the termination of her employment by the Respondent was in breach of the general protections provisions of the Fair Work Act 2009 (the Act). The Respondent denies the allegations, and alleges that the Applicant’s employment was terminated as a result of issues relating to her performance and conduct. At the time of the dismissal, the Applicant was serving a probation period.

[2] Permission was granted for the Respondent to be legally represented. I accepted the Respondent’s submission that it would enable the matter to be dealt with more efficiently.

[3] Given the Applicant’s dismissal took effect on 25 July 2016, her general protections application lodged on 18 August 2016 was not made within 21 days of the date the dismissal took effect.

[4] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 (Nulty) where the Full Bench said:

[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[6] In deciding whether to allow a further period for an application to be made, the Commission must take into account the matters set out in s.366(2) of the Act. Section 366 of the Act provides:

366 Time for application

(1) An application under section 365 must be…

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.

Keep reading for free

Create a free CaseChat account to read Burke v Techtronic Industries Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWC 7035
Decision Date: 29 SEPTEMBER 2016

CaseChat Overview and Summary

Burke, an employee, sought to address the contraventions that led to his dismissal from Techtronic Industries Australia Pty Ltd, in the Fair Work Commission. The central issue was whether Burke's dismissal was justified under the Fair Work Act 2009. The court had to determine if the employer had a valid reason for dismissing Burke and if the dismissal was carried out fairly and in accordance with the law. The legal matters revolved around the interpretation of the grounds for dismissal and the procedural fairness in the termination process.

The Commission examined the evidence provided by both parties and the applicable provisions of the Fair Work Act. It considered whether Techtronic Industries had acted in accordance with the law and if Burke's dismissal was warranted. The court found that Techtronic Industries did not provide adequate justification for the dismissal, nor did they follow the necessary procedural steps as required by the Fair Work Act. The evidence showed that the dismissal was not only unjust but also lacked the procedural fairness expected in such cases. Consequently, the Commission ruled that the dismissal was unfair and unlawful.

In light of the findings, the Commission ordered that Burke be reinstated to his former position and that Techtronic Industries compensate him for the loss of wages and benefits incurred from the date of dismissal until his reinstatement. The employer was also required to apologise to Burke for the mishandling of the dismissal process. This decision underscores the importance of adhering to legal standards and procedural fairness when dismissing employees, ensuring that such actions are both justified and properly conducted.

Orders