Cara McConnell v Haulotte Australia Pty. Ltd

[2024] FWC 756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Cara McConnell
v

Haulotte Australia Pty. Ltd.

(U2024/2154)

COMMISSIONER PERICA

MELBOURNE, 22 MARCH 2024

Application for an unfair dismissal remedy

Cara McConnell (the Applicant) made an application under s 394 of the Fair Work Act 2009 for a remedy, alleging she had been unfairly dismissed from her employment with Haulotte Australia Pty. Ltd. (the Respondent).

Procedural history

The application may have been made out of time. To deal with this threshold issue, I made directions on 1 March 2024 and listed the matter for a determinative conference on 21 March 2024.

By paragraph [5] of the directions, the Applicant was required to file and serve her submissions and witness statements on or before 5:00PM on 12 March 2024. Having received no documents, my Chambers sent an e-mail reminding the Applicant of those directions.

The Applicant replied on the same day indicating she had provided material with her application. My Chambers outlined the matters to be taken into account in s 394(3) and noted that if the Applicant did not wish to file additional material, the extension of time application would be decided without it. Ultimately, the Applicant did not file further material.

The determinative conference proceeded on 21 March 2024. The Applicant, the General Manager of the Respondent Mr. Keith Clarke and the Human Resource Manager of the Respondent Ms. Amber Raisbeck all appeared, and each gave sworn evidence and made submissions.

For the following reasons, I have decided not to grant an extension of time and the application in this matter is therefore dismissed.

When must an application for an order granting a remedy be made?

Section 394(2) provides that such an 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?

A 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.”[1] It is not contested the dismissal took effect on 5 February 2024. It follows the final day of the 21-day period was 26 February 2024 and ended at midnight on that day.

At 9:47 PM on 27 February 2024, the application was filed one day late. As it was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Under section 394(3), 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 the Applicant first became aware of the dismissal after it had taken effect; and
(c)   any action taken by the Applicant…

CaseChat Overview and Summary

Cara McConnell sought a remedy for unfair dismissal from her employment with Haulotte Australia Pty. Ltd., as per section 394 of the Fair Work Act 2009. The dismissal was effective on 5 February 2024, and the application was filed on 27 February 2024, one day beyond the 21-day statutory limit. The primary legal issue was whether the Fair Work Commission should grant an extension of time for McConnell to file her application, given the late filing. The court had to consider various factors under section 394(3) to determine if exceptional circumstances existed to justify the extension.

The court examined the reasons for the delay, the Applicant's awareness of the dismissal, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness between the parties. McConnell's reason for the delay—pressing the wrong link on the Fair Work Commission's website—was deemed routine and not exceptional. Additionally, the court found no prejudice to the employer and could not assess the merits due to the absence of written submissions or witness statements. The court concluded that there were no exceptional circumstances warranting an extension of time, and thus dismissed the application for unfair dismissal.

The Fair Work Commission held that the application was untimely and, given the absence of exceptional circumstances, did not merit an extension of time. Consequently, McConnell's application for an unfair dismissal remedy was dismissed. The Commission did not grant any remedy, and the decision stood as final.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established