Casey v Guardian Community Early Learning Centres - [2014] FWC 4002

[2014] FWC 4002

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krystena Casey
v
Guardian Community Early Learning Centres T/A Smith Street Childcare
(U2014/7009)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 JUNE 2014

Application for relief from unfair dismissal; application made outside of the time prescribed in s. 394(2); consideration whether to allow a further period within which application should be made; application lodged 3 days out of time; applicant waited until second-last day to lodge application by posting it in the ordinary surface mail; applicant relied on surface mail being delivered within 1 day; not satisfied that explanation is an acceptable explanation for delay; not satisfied that there are exceptional circumstances; further period to make application not allowed; application dismissed.

[1] This is an edited version of a decision delivered in transcript on 16 June 2014. Krystena Casey commenced her employment as a cook with Guardian Community Early Learning Centres, (Guardian) on or about 10 March 2012. On 11 April 2014, Ms Casey was advised that her employment with Guardian was to be terminated with effect from that day. The Commission received by post on 5 May 2014 an application made under s. 394 of the Fair Work Act 2009 (Act) by Ms Casey for an unfair dismissal remedy. Ms Casey’s application was made outside of the time within which such an application may be made. Ms Casey now seeks to be allowed a further period within which to make her application.

[2] Guardian says that it dismissed Ms Casey because she had not appropriately handled food delivery, its preparation and the service of food for the consumption of children at the child care centre at which she was employed. These reasons are set out in correspondence to Ms Casey dated 11 April 2014. Guardian says that Ms Casey was aware of the food handling requirements, that she held a food handler’s certificate, that she had received a previous warning and had been counselled about food handling. In the circumstances, Guardian says that it was justified in dismissing Ms Casey from her employment. Guardian paid Ms Casey three weeks’ pay in lieu of notice having regard to her age and length of service. Ms Casey disputes the reasons for her dismissal and says that her dismissal was harsh, unjust or unreasonable.

[3] First, I will deal with the principles that are to be applied in considering whether or not to allow an extension of time. Ms Casey’s dismissal, as I indicated, took effect on 11 April 2014. Her application to the Commission for it to deal with her application for a remedy should have been made within 21 days after her dismissal took effect, namely by 2 May 2014. The application was made, as I indicated, on 5 May 2014 when it was received by the Commission and was therefore three days outside of the time prescribed, or to put it another way, was one business day late.

[4] The Commission may allow a further period within…

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: [2014] FWC 4002
Decision Date: 18 JUNE 2014

CaseChat Overview and Summary

The case of Casey v Guardian Community Early Learning Centres involved an application for relief from unfair dismissal. The application was lodged three days outside the time prescribed in section 394(2) of the relevant legislation. The Federal Circuit Court was tasked with determining whether to allow a further period within which the application should be made. The applicant, Casey, had waited until the second-last day to lodge the application by posting it in the ordinary surface mail. The applicant relied on the expectation that surface mail would be delivered within one day.

The central legal issue before the court was whether Casey’s explanation for the delay in lodging the application was satisfactory and whether there were exceptional circumstances that warranted granting a further period. The court considered the reasons for the delay and the applicant’s reliance on the ordinary surface mail system. The court found that the explanation provided did not sufficiently justify the delay and did not find the circumstances to be exceptional enough to warrant extending the time limit. Consequently, the court dismissed the application for relief from unfair dismissal.

In reaching its decision, the court meticulously evaluated the justification for the delay and the reliability of surface mail as a delivery method. The court concluded that Casey had not demonstrated an acceptable explanation for the delay, nor had they shown that there were exceptional circumstances that would warrant an extension of time. As a result, the court did not allow a further period within which to make the application, and the application was dismissed. The dismissal effectively concluded that Casey would not be granted relief from the unfair dismissal.

Orders