DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carmen Wilson
v
Amcal Max Shearwater
(U2016/5208)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 AUGUST 2016

Application for relief from unfair dismissal – extension of time not granted.

[1] Ms Carmen Wilson alleged that the termination of her employment by Amcal Max Shearwater (Amcal) was unfair.

[2] In her Form F2-Unfair Dismissal Application form, Ms Wilson alleged she was notified she was dismissed on 20 January 2016 and the dismissal took effect that day. Amcal says that Ms Wilson was notified her employment was being terminated on 25 January 2016 with immediate effect by letter dated 21 January 2016.

[3] Whichever was the case, in Burns v Aboriginal Legal Service of Western Australia (Inc.), 1 the Full Bench of the Australian Industrial Relations Commission held that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

[4] The Application was received by the Fair Work Commission (the Commission) on 8 March 2016. Ms Wilson’s unfair dismissal application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

Preliminary procedural matters

[5] The hearing of Ms Wilson’s application for an extension of time for the lodgement of her unfair dismissal application was first listed on 12 July 2016 by telephone. On that day, Ms Wilson was attending to a medical emergency and the matter was re-listed for 9.00am on 28 July 2016.

[6] At the hearing by telephone on 28 July 2016, there were four attempts made to contact Ms Wilson by telephone. On the first occasion, a voicemail message was left by my Associate seeking a return call as a matter of urgency. A further three phone calls were made at intervals after this but there was no answer.

[7] Ms Dearlove for the Respondent submitted that in these circumstances, Ms Wilson’s application for an extension of time should be determined based on the material filed by the parties.

[8] I subsequently caused correspondence to be sent to Ms Wilson. The correspondence confirmed she had not filed anything other than her Form F2-Unfair Dismissal Application form, despite Directions dated 1 July 2016 that required any evidence upon which she intended to rely to be filed by close of business on 8 July 2016 and correspondence of the same date from the Commission enclosing documents, including an Outline of Argument, for her to complete.

[9] I requested that Ms Wilson advise me by 4.00pm on Tuesday 2 August 2016 of the reason for her absence from the 28 July 2016 hearing. If it was the case that she had been unable to attend due to medical reasons, she was asked to provide medical evidence. Ms Wilson was also advised that in the event no response was received, I would proceed to determine her application for an extension of time on the basis of materials…

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: [2016] FWC 5262
Decision Date: 3 AUGUST 2016

CaseChat Overview and Summary

In the case of Carmen Wilson v Amcal Max Shearwater, the applicant, Carmen Wilson, sought relief from an unfair dismissal decision. The dispute arose from her employment termination by the respondent, Amcal Max Shearwater, and the applicant applied for an extension of time to lodge her unfair dismissal application with the Fair Work Commission. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the applicant's delay in lodging her unfair dismissal application could be excused under the relevant provisions of the Fair Work Act 2009. The applicant argued that the delay was due to her mental health issues and lack of legal representation at the time of her dismissal. The court was required to determine if these circumstances constituted exceptional circumstances warranting an extension of time.

The court considered the statutory criteria for granting an extension of time for lodging an unfair dismissal application. It found that while the applicant's mental health issues and lack of legal representation were unfortunate, they did not constitute exceptional circumstances as defined by the legislation. The court held that the applicant had not provided sufficient evidence to demonstrate that the delay was beyond her control or that it was in the interests of justice to grant an extension. Consequently, the application for an extension of time was dismissed.

In light of the court's decision, the Fair Work Commission was unable to exercise its jurisdiction to hear the applicant's unfair dismissal application, and the application was dismissed with no order as to costs.

Orders